I return to the letter:

“I have no political view whatever. Those which I entertained

some months ago, and which were communicated to you, have been

abandoned.”

Here is another note by Mr. Smith:

“J. Smith presumes that Mr. Burr refers to an invitation to

settle in Tennessee, of which he heard him speak.”

The letter proceeds:

“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 a certain

time, to be paid in land, and found in provisions for the time

they labor--perhaps one year. Mr. J. Breckinridge, 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._”

And, finally, there is the following marginal admonition:

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

publication.”

Thus you see, sir, that the design of separating the States is denied in

terms explicit, as Mr. Smith’s letter had desired; but, with how much

regard to truth, this volume of evidence at Richmond has sufficiently

proved. The purchase of the Washita lands is announced to have been

completed. Thus far, the answer is precisely such as the letter seemed

to ask; but all the rest is darkness and oblivion. The caution against

publication was itself not naturally suited to inspire confidence. It

seems to say, You may show this letter, but you must not publish it.

The other allusions are so obscure--so unintelligible--that Mr. Smith

has found it necessary to make them clear by explanatory notes. There

is a reference to former conversations on the subject of a separation

of the States, in which Mr. Smith is _reminded that he concurred_ with

the sentiment which Mr. Burr had expressed. Mr. Smith’s note intimates

that this refers to opinions about the separation of the Union in some

fifty or a hundred years. But, if Burr’s speculations in public companies

postponed to so distant a date the event, which he was projecting, to

Eaton, to the Morgans, to Blannerhasset, to McFarland, and Glover, he had

been urging the propriety of their accomplishment at a much earlier day.

And from the testimony of Colonel James Taylor, it would seem that the

concurrence of sentiment for which Mr. Burr refers to the consciousness

of Mr. Smith, extended no less to the practical projects than to the

speculative opinions of Burr--to the separation of the States within five

or two years rather than to the dismemberment of the next century. The

mode, says Mr. Burr, for promoting such a measure would be by operating

on the minds of the people, and demonstrating it to be their interest.

Now this was the very mode in which Mr. Burr and Blannerhasset under him

had been attempting to promote the measure. Burr had been so operating

at Cincinnati the year before this. And William McFarland at least had

persuaded, that Cincinnati was to be the capital of the Western empire.

He had been so operating all the way at least from Pittsburg, in August,

and until he left Cincinnati in September, only six weeks before these

letters were written. The _Querist_ was one of these instruments of the

_mode_ for operating upon the minds of the people. And when the _Querist_

first appeared, Mr. Smith had expressed his approbation of its contents.

Is not this the sort of concurrence to which Mr. Burr alludes rather

than that of speculating upon the destinies of a future age? The rest of

the letter is equally obscure. Mr. Burr’s abandonment of a project for

settling in Tennessee requires the explanation of a note from Mr. Smith;

and that note is conjectural. Mr. Burr has some other views, merely

personal, which he can only communicate _personally_. If they could

affect the interests of the United States, it would only be beneficially;

but they were prompted by no public considerations, but merely for the

interest and comfort of himself and his friends.

Mr. President, I ask again the attention of the Senate to this remarkable

sentence. Did Mr. Smith, on receiving the letter, understand this

sentence, or did he not? If he did, where is the whole defence which

he has now set up? If he did not, was this paragraph calculated to

inspire his confidence? Was it calculated to remove suspicions? Projects

which could only be _personally_ disclosed! Projects which might affect

the interests of the United States! Projects prompted by _no public_

considerations! but merely by personal interest for himself and _his

friends_! And was this to remove suspicion from the mind of a Senator

of the United States? Was this an answer to calm anxieties and restore

confidence? Is not the very language of it suspicious? Equivocal?

Ambiguous? I ask every member of this Senate to put the question to

himself. Had you been at that time in the midst of the scene of Burr’s

operations, and had you received such an answer to a letter of solicitous

inquiry, would it not have increased instead of allaying your alarm?

Would you not have seen in this paragraph a concealment suspicious in

itself--darkened still further by expressions of dangerous import and of

doubtful legality? Strange indeed must be the texture of that mind to

which this answer could restore unqualified confidence in the writer!

But, sir, if Mr. Smith had seen nothing in this letter to startle

confidence, instead of composing it, was there nothing in the course

of public events at that time, which might and should have aroused him

to more than suspicion? Mr. Burr’s letter was dated on the 26th of

October; within ten days from that time, that is, on the 5th of November

following, the District Attorney of the United States in Kentucky filed

a complaint against Mr. Burr, for a violation of the laws of the United

States, in setting on foot an expedition against Mexico, which complaint

I beg leave to read--

“J. H. Daviess,[52] attorney for the said United States, in and

for said district, upon his corporal oath, doth depose and say,

that the deponent is informed, and doth verily believe, that

a certain Aaron Burr, Esq., late Vice President of the United

States, for several said months past hath been and is now

engaged in preparing and setting on foot, and in providing and

preparing the means for a military expedition and enterprise

within this district, for the purpose of descending the Ohio

and Mississippi therewith, and making war upon the subjects of

the King of Spain, who are now in a state of peace with the

people of the United States, to wit: on the province of Mexico,

on the westwardly side of Louisiana, which appertain and belong

to the King of Spain, a European prince, with whom the United

States are at peace.

“And said deponent further saith, that he is informed, and

fully believes, that the above charge can, and will be fully

substantiated by evidence, provided this honorable court will

grant compulsory process to bring in witnesses to testify

thereto.

“And this deponent further saith, that he is informed, and

verily believes, that the agents and emissaries of the said

Burr, have purchased up, and are continuing to purchase large

stores of provisions as if for an army, while the said Burr

seems to conceal in great mystery, from the people at large,

his purposes and projects: and while the minds of the good

people of this district seem agitated with the current rumor,

that a military expedition against some neighboring power is

preparing by said Aaron Burr.

“Wherefore, said attorney, on behalf of said United States,

prays that due process issue to compel the personal appearance

of the said Aaron Burr in this court, and also of such

witnesses as may be necessary in behalf of the said United

States; and that this honorable court will duly recognize the

said Aaron Burr, to answer such charges as may be preferred

against him in the premises. And in the mean time, that he

desist and refrain from all further preparation and proceeding

in the said armament within the said United States, or the

territories or dependencies thereof.”

It will be remembered that on this complaint a grand jury was summoned,

and on the 8th of November discharged, because Davis Floyd, whom the

attorney deemed a material witness, and whom we now know to have been

one of Mr. Burr’s principal associates, was absent. We all know what

the effect of this transaction was here. Certainly not of inspiring

_confidence_ in those who were _ignorant_ of Mr. Burr’s real designs.

No, sir! The confidence which this abortive attempt to bring Mr. Burr to

justice inspired, was in himself and associates. He wrote immediately to

Blannerhasset not to apprehend any danger from this prosecution, (which

his friends then and so long after called a persecution,) but _delay_

in the settlement of the lands; and one fortnight after--that is on the

twenty-third day of November--we see him again at Cincinnati, making the

promised personal and confidential communication to Mr. Smith, which

he had not dared in a letter of 26th October to commit to paper--and

no wonder; for it is a complete and unquestionable acknowledgment of

the identical crime for which Mr. Burr had been summoned into court

at Frankfort, not twenty days before, and discharged merely from the

failure of a witness to attend. But it is not merely a confession of

_that_ guilt, it imports much more; and the very terms used by Mr.

Smith, relating it, in his affidavit of 6th of June, 1807, show that

he understood it as importing more. Mr. Burr tells Mr. Smith, that his

design “is not dishonorable, or _inimical_ to this Government;” he

“repeated that his object was _not hostile to the people of the United

States or dishonorable to himself_,” and that he would be “the _best

neighbor this country ever had_.” Whether the design was honorable or

dishonorable, Mr. Smith should have judged for himself. That it was not

inimical to this Government, there was little reason for him to believe,

when coupled with those boiling resentments which overflowed from the

lips of Mr. Burr in the very act of making this acknowledgment: “In this

Government he had been persecuted, shamefully persecuted, and he was

sorry to say that in it all private confidence between man and man seemed

to be nearly destroyed.” And in this state of temper, Mr. Burr “ventured

to tell Mr. Smith that if there should be war between the United States

and Spain, he, _Burr_, should _head a corps of volunteers, and be the

first to march into the Mexican provinces_; if peace should be preserved,

which he did not expect, he should settle his Washita lands, and make

society as pleasant as possible.”

And this is the communication which _added strength_ to Mr. Smith’s

confidence in Mr. Burr! This is the communication upon which Mr. Smith

engaged his two sons to go as Burr’s associates!

The attack upon Mexico was to be _in case_ war should take place

between Spain and the United States. But is it possible, sir, that a

man of Mr. Smith’s understanding should _at that time_, and under these

circumstances, have given an instant of credit to that shallow pretence?

If Mr. Swartwout, one of Burr’s acknowledged associates, was ashamed of

pretending to rely on this tale of contingent war, and frankly told the

grand jury at Richmond that they were to attack Mexico, to be sure, in

case of a war with Spain; but if there had been _no_ war _he_ was ready

to forget the law of the United States against such expeditions. If

Commodore Truxton, a private citizen, smarting under the injuries which

he conceived he had suffered from the Administration, even in July,

while the project was but in prospect, and not in actual execution, made

his first and emphatical question, whether the Government of the United

States was acquainted with it, and on being informed that they were not,

instantly refused to have any concern with it; let me ask, whether in the

last days of November, while Burr was persevering in his preparations,

after having been brought before a judicial court upon the very charge,

and dismissed solely because a witness was absent, _a Senator of the

United States_, receiving this communication from Burr himself, could

possibly be the dupe of this pretence? Whether his first question ought

not to have been that of Commodore Truxton: Is the Executive of the

United States informed of your designs? Is it possible, sir, that this

disclosure of the intended Mexican invasion could confirm the confidence

of Mr. Smith, when it was the very thing for which the district attorney

not three weeks before had entered the complaint against Mr. Burr, before

the court of the United States competent to try that offence? Is it

possible that Mr. Burr’s confession of his guilt should have been the

confirmation of Mr. Smith’s confidence? Yes, sir; so far as relates to

the misdemeanor--to Mr. Smith’s participation in the project for invading

Mexico--his own affidavit on the 6th of January, 1807, is evidence,

which, in my mind, nothing can control. His engagement of his two sons to

Mr. Burr, admits neither of denial nor of jurisdiction.

About ten days after this, on the second and third of December, Mr. Smith

goes to Cynthiana, Frankfort, and Lexington, to purchase provisions, and

to sell bills of exchange. Here he accidentally sees again Mr. Burr. He

finds that Mr. Burr is for the second time charged, and now before a

grand jury, with that very offence of preparing an expedition against

Mexico, which in his confidential communication to Mr. Smith he had

explicitly avowed. And Mr. Smith, by the testimony of three of his own

witnesses, hurries away from the scene to avoid being subpœnaed as a

witness, declaring that he knows nothing on the subject that could either

criminate or justify Mr. Burr. The first of these witnesses is Kelly,

Mr. Smith’s confidential agent and storekeeper at Cynthiana; of whose

character as a man of uprightness and veracity, the most respectable

attestations are produced. After stating the motive of Mr. Smith’s going

to Cynthiana, and thence to Lexington, Kelly’s deposition, produced there

by Mr. Smith himself, proceeds thus:

“He returned and informed me that on his arrival at Lexington

he understood that the principal men with whom he wished to

transact business, were at Frankfort; that he was also informed

that a prosecution, the second time, was commenced against

Colonel Burr, and he (Smith) was told, that if it was known

he was in the State, he would be subpœnaed as a witness; that

he told his informers he would not put them to the trouble

to summon him, if he had a fresh horse he would go on there

immediately; finding he could not see the men he wished to

see, he started for Frankfort; that on his arrival there he

inquired for Major Morrison, I think he said, in two or three

public houses, but could not find him; that he was informed

the investigation into Burr’s conduct before the grand jury

was delayed for want of General Adair, who was said to be a

principal witness against him, and that in all probability

proceedings would be stayed for several days, and as he (Smith)

could not be detained so long from his business, particularly

as he _knew nothing that would either criminate or exculpate

Colonel Burr_; that if his testimony could be of any benefit

either way he would have stayed with pleasure, but as _he

was entirely ignorant of any of Burr’s political views_, he

conceived to stay there for no purpose would be doing injustice

to his private as well as public concerns, and therefore, as he

was not summoned, he started away early next morning.”

Mr. Jourdan’s deposition, after relating Mr. Smith’s applications to him

respecting the bills of exchange, says--

“The conversation then turned on the pending trial of Colonel

Burr; and I mentioned that I had been called on as a witness;

and observed that Burr had also been at your house; and was

it known that you were in this place, that you would also be

called on. You said you was willing; _that you knew nothing

of the business_; but, as you could not get your business

accomplished here, that if you had a fresh horse you would go

to see Major Morrison, and save them any trouble of subpœnaing

you.”

The deposition of Joseph Taylor is to the same effect; that Mr. Smith

denied all knowledge of any thing which could operate either for or

against Mr. Burr.

Now, sir, how was the fact? Was Mr. Smith thus ignorant? It seems to

me that he was not. The disclosure which on the 23d of November, he

himself has sworn Mr. Burr had made to him in confidence, was knowledge

of the most decisive character on the question before the grand jury;

was knowledge which, had Mr. Smith been even a private citizen, he was

bound in duty to have gone and related to them. Admitting that even Mr.

Smith could have believed that Burr intended the Mexican invasion only

in case a war should break out; still the preparations he was making

were unlawful; still he was guilty of the very charge made against him

then before the grand jury; and had confidentially avowed the object to

Mr. Smith. Had Mr. Smith gone before that grand jury, and told them,

from the lips of Mr. Burr, what the affidavit of 6th January, 1807,

declares upon oath; that grand jury, instead of dismissing Mr. Burr as

they did, with commendation and applause, would have been bound, with

the oath of God upon their consciences, to find a bill against him. The

confession of Mr. Burr unquestionably brought him within the operation

of the statute upon which he was prosecuted, and I cannot but attribute

to Mr. Smith’s studious avoidance of attending upon that grand jury,

all the unfortunate, and I may say calamitous consequences which have

befallen this nation, from the failure of bringing Burr to justice at

that time. Had he then been indicted, on Mr. Smith’s testimony alone, he

must have been convicted. The alarms, the agitations, the extraordinary

and irregular stretches of power at New Orleans, which have distressed

every free and patriotic heart, would have been needless; would have been

prevented. The progress of that pernicious enterprise would have been

arrested there. The whole judicial authority of the United States would

have been laid prostrate before the wiles of conspiracy. There would have

been no trial; no occasion for a trial at Richmond; treason would have

been nipped in the bud, and Mr. Smith himself would at this day have been

here, in the full enjoyment of his reputation, with his consciousness of

having rendered a service of the highest importance to his country. But,

sir, unfortunately for him; unfortunately for us; unfortunately for his

country, he had engaged his two sons to Mr. Burr. He could not testify

against Burr without condemning himself, and he shrunk from the presence

of the grand jury.

Ten days after this the President’s proclamation and Governor Tiffin’s

orders for the militia to be called out, both arrived on the same day,

the 13th of December, at Cincinnati; and from that time Mr. Smith’s

exertions to carry into effect the orders both of the General and State

Governments were characterized with great and extraordinary zeal. But

even then he writes to the Secretary at War a narrative not exactly

conformable to that afterwards contained in the answer to the committee;

in the answer Mr. Smith declares repeatedly that all his _doubts_ and

_suspicions_ about Mr. Burr had been removed by his open-hearted, candid

letter of 26th October. In the letter to the Secretary of War, he speaks

of himself as harboring so strong suspicions on Burr’s subsequent visit

to Cincinnati in November, as then to have _asked_ him _pointedly_ if

any object he had in view justified the suspicions that prevailed about

him, and that from Mr. Burr’s apparent candor in answering this question

he (Smith) entertained no doubt of him. Now, this apparent candor was

an acknowledgment of the very same undertaking which the President’s

proclamation called upon the people to suppress. The proclamation had no

reference to the part of Burr’s project which aimed at the dismemberment

of the Union--it was the intended invasion of Mexico, which it extended

the arm of the nation to restrain--the very expedition upon which Mr. S.

had engaged his two sons.

How was it possible that this disclosure of an unlawful design could have

restored the confidence and received the countenance of Mr. Smith? It

is this, with the circumstances attending it, and which I have noticed,

that render Mr. Smith himself the most material of all the witnesses

against him. The letter, I have shown, contained little to remove, and

much--very much--to excite suspicion. The avowal of the intended march

to Mexico was an avowal of guilt. Mr. Smith does not pretend that Mr.

Burr hinted to him that the design was approved by the Government.

The bitterness with which he spoke of the Government was surely, of

itself, an indication to the contrary. Did not Mr. Smith know that

this was an unlawful enterprise? Could he have been ignorant of this

before? The first prosecution in Kentucky must surely have given him

sufficient notice of that. Before he engaged his two sons, ought he

not to have inquired how the Washita settlement was to be made?--how

the same preparations could be transformed, at pleasure, from purposes

of war to purposes of agriculture?--how the same men and the same

things could possibly be applied to the invasion of one country and the

settlement of another?--by what magic they were to beat their swords

into ploughshares, and their spears into pruning-hooks? Even Peter

Taylor--the stupid Peter Taylor, as Mr. Smith has pronounced and his

counsel endeavored to prove him; even Peter Taylor--when Blannerhasset

attempted to engage _him_ for the Washita settlement, inquired what kind

of _seed_ they should carry with them; nor would he be satisfied with

Blannerhasset’s evasions of this question, but urged him with it until

he forced out the whole project--the Mexican empire--the royal diadem

of Mr. Burr--and the dismemberment of the American Union! Peter Taylor

was, indeed, as Mr. Smith says, a gardener. He certainly cannot, in

point of understanding, be compared with Mr. Smith; yet, even he could

bethink himself of the articles which would be suitable for his agency

in a settlement of lands; even he could discern the difference between

garden-seeds and gunpowder. And yet, Mr. Smith, a Senator of the United

States--a settler in a new country--a confidential and intimate friend of

Mr. Burr--engaged his two sons for an amphibious expedition of settlement

or war, without putting a single question to ascertain how these schemes

of contrariety could be reconciled together--without one single inquiry

which could lead to a colorable pretence of right for the warlike part

of the plan--preparations for war--levying of troops! Was a Senator of

the United States to wait for the President’s proclamation to learn

the unlawfulness or the danger to the liberties of the country of such

enterprises, undertaken without public authority? Was he yet to learn

that the power of making war and of raising soldiers has been deemed by

the people of this nation of such magnitude and danger that they would

not intrust them to the Executive authority, but have expressly and

cautiously reserved them exclusively to the representatives of the nation

assembled in Congress? And, until the declaration of war by Congress,

he surely knew that every preparation of expeditions to invade the

territories of a neighboring sovereign, was, even in the incipient stage

of beginning and setting on foot, in direct violation of the laws of the

land. The pretence that it was to be pursued only in case war should take

place, did not make it at all more lawful, but made it, if any thing,

more dangerous. Suppose, sir, that war had been declared, was it for

Aaron Burr to say who should _head_ corps of volunteers, or who should

be _the first_ to march into the Mexican provinces? Entertaining the

opinion that I do and then did of Mr. Burr, I should have considered it

as one of the greatest misfortunes which could have befallen the United

States, even if they were at war, to have had such a man as him at the

head of their armies. Nor can I consider it but as highly unbecoming in

a member of the National Legislature to have given him countenance in

this project of forcing himself upon the Government of the Union as the

General of an army for the invasion of Mexico. It was encouraging and

aiding a violation of the constitution in its vital principles; it was

setting an example more to be dreaded by the people of the Union than the

most formidable foreign war. And of all this Mr. Smith himself is the

self-accusing witness. All the other witnesses are but in confirmation

and aggravation of these decisive facts. Some of them indicate

circumstances of very strong suspicions that Mr. Smith’s participation

was much earlier and much deeper. Others strikingly demonstrate that he

was acting under a consciousness of unlawful engagements; and all concur

in producing upon my mind the conviction that this resolution ought to

pass.

Mr. President, I have discharged a painful obligation. No discussion

has ever devolved upon me, as a member of this body, in which I have

taken a part with more reluctance than in this. Until these transactions

occurred, there was perhaps not another member of the Senate in whose

integrity I more confided: and but for this, there is none whom I should

more readily take by the hand as a friend and a brother. I trust, sir,

that I feel as I ought for his personal situation on this occasion, as

well as for the interests and the feelings of his family. I am sensible,

and have never lost sight of what is due from me to him as members of

this Assembly. But there is also a duty to the character and reputation

of this body; a duty to the State whose representation on this floor

has been in part intrusted to him; and a duty to the whole nation whose

public servants we are. In the discharge of these duties, I have felt

myself compelled to submit these observations to the Senate, and with

these I shall conclude.

When Mr. ADAMS had concluded, on motion of Mr. GILES, the further

consideration of the subject was postponed until to-morrow.

The Senate resumed, as in Committee of the Whole, the consideration of

the amendments reported by the select committee to the bill, entitled

“An act concerning courts martial and courts of inquiry;” and, after

progress, adjourned.

SATURDAY, April 9.

_Case of John Smith._

Agreeably to the order of the day, the Senate took up the resolution

reported by the committee, appointed on the 7th of November last, to

consider the subject, to wit:

_Resolved_, That John Smith, a Senator from the State of Ohio,

by his participation in the conspiracy of Aaron Burr, against

the peace, union, and liberties of the people of the United

States, has been guilty of conduct incompatible with his duty

and station as a Senator of the United States; and that he be

therefor, and hereby is, expelled from the Senate of the United

States.

Mr. HILLHOUSE.--The cause before the Senate has been so fully heard,

and so ably discussed, that it was my intention to have given a silent

vote, had not the gentleman from Massachusetts (Mr. ADAMS) declared in

so pointed a manner that even voting on the resolution would sanction

the report of the committee which accompanied it; a report containing

principles which I can never sanction by my vote; principles which go

to discredit all our criminal tribunals, and those rules of proceeding

and of evidence which govern the decisions of courts; rules which

alone can shield innocence, and protect an accused individual against

a Governmental prosecution, or the overwhelming power of a formidable

combination of individuals, determined on his destruction--principles

which would plant a dagger in the bosom of civil liberty.

I do, most fully, agree with the gentleman from Massachusetts, that the

Senate for the purpose of exercising their censorial power of expulsion,

have cognizance of the case before us. That, for that purpose, they

have cognizance of all crimes and offences, and are not bound to wait

for the proceedings of the courts of common law. I further admit, that

the same degree of evidence is not necessary to justify an expulsion of

a member, as to convict him before a court and jury. For example, on a

charge of treason, two witnesses are necessary to a conviction. On such

a charge, I should not hesitate to expel a member on the testimony of a

single witness of irreproachable character. What I insist on is, that the

evidence admitted must be legal evidence, and such as would be admissible

in a court of law; not _ex parte_ depositions, hearsay evidence, or

surmises founded on mere conjecture or suspicion.

Were I, in deciding this case, to be governed by political or party

considerations, I should incline to vote in favor of the resolution on

your table. But, when we reflect, that agreeing to the resolution is to

disrobe a Senator of his honor, to doom a fellow-citizen, an amiable

family, and an innocent posterity, to perpetual infamy and disgrace,

party and political considerations ought not, cannot influence the

decision. Impartial justice and testimony, alone, must govern, and I

flatter myself will govern, every member of this Senate in the vote he is

about to give.

Elias Glover, having volunteered in giving his deposition, when no

accusation existed, was to be considered rather an accuser than a

witness. An _ex parte_ deposition, taken under such circumstances, could

not by me be considered as evidence, on a question of expulsion, had not

the accused member and his counsel agreed to its admission, by which I

was bound to consider it as evidence. And in my mind it is so material,

that if the force of it had been destroyed by counter-testimony, I

must have voted for the resolution before us. But I have listened with

pleasure, for it always gives me pleasure when a person accused can

prove his innocence, to the evidence adduced, which has completely done

away the force of Glover’s deposition. The gentleman from Massachusetts

admits, and every member who has spoken seems to agree, that no reliance

can be placed upon it. I shall therefore lay that out of the case; as

also the other evidence attempting a direct proof of a participation in

Aaron Burr’s conspiracy, as in this also I fully agree with the gentleman

from Massachusetts that it amounts to very little. It is the conduct

and confessions of Mr. Smith by which his guilt is endeavored to be

established; and when such talents and eloquence as are possessed by the

gentleman from Massachusetts are brought to bear upon, and are urged with

so much energy and force against an individual accused of being concerned

in plots and conspiracies against the Government of his country, charges

peculiarly calculated to excite jealousy and suspicion, innocence itself

could hardly expect to escape. After hearing his able and eloquent

argument, I was much gratified by the motion of the gentleman from

Virginia (Mr. GILES) to postpone. I wished for one night to consider the

subject; I was not then prepared to make a reply.

The gentleman from Massachusetts has relied on the conversations,

confessions, and conduct of Mr. Smith to prove his guilt, but he does not

take the whole conversation and confession together; and it is a rule

of law, always admitted, and never to be departed from, that when the

confession of the party is taken, the whole must be taken together; and

not to make out proof of guilt, by selecting different detached parts,

leaving out other parts that go to explain what otherwise might appear

criminal. A strict adherence to this rule will leave little of evidence,

or even ground of suspicion of guilt in this case. If all Mr. Smith’s

conversations and confessions are taken together, there can remain little

doubt of his innocence.

The first circumstance in Mr. Smith’s conduct which is laid hold on,

and on which the gentleman from Massachusetts has built his argument to

establish his guilt, is, that Mr. Smith has confessed that in September,

1806, he gave Aaron Burr a hospitable reception under his roof, for

four or five days; that he afterwards saw him again at Cincinnati and

in Kentucky. What was there suspicious in all this? Who was Aaron

Burr? And what was the situation of Mr. Smith in relation to him, that

extending to him the rights of hospitality should excite suspicion, and

fix the imputation of crime? Aaron Burr was a man who had stood high in

the confidence of the people of the United States--a man who had been

associated with the present Chief Magistrate, and had received an equal

number of the votes of the electors for President--a man who had been by

the voice of his country placed in the second office in the nation--a man

who for four years filled the chair you now occupy, and presided over

this Senate with impartiality and dignity; and in a manner to command

universal approbation. So great was the ascendency which he had acquired

in this body, that towards the close of his term of service, a bill was

passed granting to him for life the privilege of sending and receiving

letters and packets through the mail free of postage, a privilege which

had never been extended to any but a President of the United States

and Mrs. Washington. So great was the confidence of a majority of the

Senate in Aaron Burr, as to produce an unusual zeal, no doubt a laudable

zeal, for passing the bill. It was pressed in an unusual manner; and

we were called to a decision when he was himself in the chair; he who

could almost look down opposition. Under such circumstances it was

painful to oppose the bill; and nothing but a strong sense of duty

could have impelled any one to make opposition. The yeas and nays on

the Journal[53] will show how great a portion of the Senate, of which

number was Mr. Smith, had so high a confidence in Mr. Burr. At that time

I had no more suspicion than the majority of Colonel Burr’s having any

treasonable designs; though in opposition to the bill, I did state it

as a possible case, that a Vice President, ambitious of rising to the

first office in the nation, and meeting with disappointment, might become

disaffected, and engage in treasonable plots to overturn the Government,

and avail himself of his privilege and the mail to circulate his treason

into every corner of the Union. The bill was arrested in the House of

Representatives.

The Senate also adopted the following:

“_Resolved, unanimously_, That the thanks of the Senate be

presented to Aaron Burr, in testimony of the impartiality,

dignity, and ability with which he has presided over their

deliberations; and of their entire approbation of his conduct,

in the discharge of the arduous and important duties assigned

him as President of the Senate.”

I was happy on this occasion to unite in what I considered a just tribute

of applause for his conduct as President of the Senate.

This was the close of Aaron Burr’s political career; this was the last

public office he sustained in the nation, and from that time, till Mr.

S. received the pencilled note asking for the hospitality of his house

for a few days, it was not publicly known that he had done any thing to

take off the impression which his official conduct as Vice President, and

those public acts of the Senate, had made. Under these circumstances,

and considering the intimacy and friendship which had been contracted

while they were associated in the same political body, the Senate of the

United States, what could Mr. Smith do? What did his early impressions,

all the habits of his life, and the honorable feelings and sentiments

of a gentleman, imperiously demand of him to do? The answer will be

anticipated; he could no otherwise than extend to him the rights of

hospitality, receive and treat him as a gentleman. Had he been an entire

stranger he could not have done otherwise, without being considered as

having disgraced his native State, for he was born in Virginia, so famed

for hospitality, not only to friends, but to strangers. Had Mr. S. done

otherwise than he did, would he not have been disowned as unworthy to

be called a Virginian? This act of hospitality and politeness is now

considered as a crime, which is to fix indelible disgrace on Mr. S. and

his family.

The next thing relied on is, that Mr. S. being informed of the projects

and schemes of Mr. Burr, concealed them. The gentleman from Massachusetts

has told us that, if Mr. S. had come forward and testified before

the grand jury of Kentucky, Burr would have been convicted, and his

treasonable plot, which has done so much mischief, arrested. The

disclosure which Mr. S. states to have been made to him, (and there is

no proof on the subject but what comes from himself) is as follows--viz:

Colonel Burr said to him, “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.” Now

I ask, Mr. President, was there any thing criminal, was there any thing

unlawful in all this? Was there any thing to excite suspicion that Aaron

Burr was engaged in a treasonable plot to sever the Union, or invade the

territory of a friendly power, in amity with the United States? Was it

not, on the contrary, expressly said not to be dishonorable or inimical

to the Government? Was there any reason to suppose our Government would

not, in the event of a war with Spain, accept the services of a corps of

volunteers; when the policy seems to have been to rely on volunteers; and

laws have frequently passed calling for, and authorizing the employment

of such force? The evidence of Mr. S., had he appeared before the grand

jury, instead of criminating Colonel Burr, must have operated in his

favor; for to have headed a corps of volunteers under such circumstances

would have been laudable. Has Mr. S. ever manifested any unwillingness

to disclose what he knew of Burr’s projects? On the contrary, has he not

always done it freely, when there was a fit occasion, not only to his

friends but the officers of Government?

But the gentleman from Massachusetts has compared the case of Mr. Smith

with that of Commodore Truxton, and stated that upon Burr’s disclosing

his plans to the latter, he was asked this all-important question--“Is

the Executive of the United States privy to or concerned in the project?”

This, says he, ought to have been the conduct of Mr. Smith; this would

have been his conduct if he had been an innocent and an honest man.

I little thought that Commodore Truxton’s deposition would have been

resorted to in this case; a deposition which had not been read, a

deposition not taken on the trial in the presence of Mr. Smith, nor in

any way relating to his case. It must be an uncommon zeal that could

have induced any one, possessing the legal knowledge of the gentleman

from Massachusetts, to have resorted to that as evidence. But, sir,

the answer to this is plain. Mr. Burr did not go as far with Mr. Smith

as with Commodore Truxton, otherwise Mr. Smith would probably have

asked him the same question. But so much reliance having been had on

Commodore Truxton’s deposition to prove Mr. Smith’s guilt, on the score

of omissions, as well as of what he has done, I must be permitted to read

a part of that deposition: it is in these words, viz:

“About the beginning of the winter of 1805-6, Colonel Burr

returned from the Western country and came to Philadelphia. He

frequently in conversation mentioned to me certain speculations

in Western lands. These conversations were uninteresting to

me, and I did not pay much attention to them. Colonel Burr

requested me to get the Navy of the United States out of

my head, as he had something in view, both honorable and

profitable, which he wished to propose to me. I considered this

as nothing more than a desire to get me interested in land

speculations. These conversations were frequently repeated; and

some time in the month of July, 1806, Colonel Burr observed

that he wished to see me unwedded from the Navy of the United

States, and not to think any more of those men at Washington.

He observed that he wished to see or to make me (I do not

recollect which) admiral; for he contemplated an expedition

into Mexico, in the event of a war with Spain, which he thought

inevitable. He asked me if the Havana could not be easily taken

in the event of a war. I told him that it would require the

co-operation of a naval force. Mr. Burr observed, that might be

obtained. He pursued the inquiry as to Carthagena and La Vera

Cruz; what personal knowledge I had of those places, and what

would be the best mode of attacking by sea and land. I gave my

opinion very freely. Mr. Burr then asked me, if I would take

the command of a naval expedition. I asked him if the Executive

of the United States was privy to or concerned in the project.

He answered me emphatically, that they were not. I asked him

that question because the Executive had been charged with a

knowledge of Miranda’s expedition. I told Colonel Burr that I

would have nothing to do with it; that Miranda’s project had

been intimated to me, and that I had declined any agency in

those affairs. Mr. Burr observed that, in the event of a war,

he intended to establish an independent Government in Mexico;

that Wilkinson, the Army, and many officers of the Navy, would

join. I replied, that I could not see how any of the officers

of the United States could join. He said that Gen. Wilkinson

had projected the expedition, and that he himself had matured

it; that many greater men than Wilkinson were concerned (or

would join); and thousands to the westward.”

Mr. President, notwithstanding Colonel Burr had gone much farther in

communicating his plans and projects to Commodore Truxton than he had

done to Mr. Smith, and notwithstanding those insinuations of weaning

him from the Navy, forgetting those men at Washington, &c.,--which must

have excited suspicion in the mind of a man of Commodore Truxton’s

discernment, that Colonel Burr’s project was unlawful, and not known to

or approved by the Government--yet Commodore Truxton, in whose honor

and integrity I have the highest confidence, did not put the question

which the gentleman from Massachusetts relies on so much, and approves

so highly, as evincing his integrity; and for not asking which Mr. Smith

is to be suspected of a participation in guilt. It was when Colonel Burr

asked Commodore Truxton directly if he would take the command of a naval

expedition, and not till then, that he put the question. Had Colonel Burr

asked Mr. Smith to engage supplies of provisions, gunboats, arms or men,

for his expedition, then, and not till then, could it be expected that

Mr. Smith should have asked such a question; so far from saying any thing

to excite Mr. Smith’s suspicions, Colonel Burr had expressly declared

his object was not dishonorable or inimical to this Government. That

Commodore Truxton was dissatisfied with the Administration appears by

his answer to a question of Mr. McRae in the same deposition, viz: “Were

the remarks which he made on your relation to the Navy, calculated to

fill your bosom with resentment against the Government? A. My bosom was

already full enough, but certainly Colonel Burr spoke in concert with my

feelings.”

General Eaton’s deposition has been introduced under like circumstances,

and for the same purpose as that of Commodore Truxton. He testifies that:

“During the winter of 1805-’6, I cannot be positive as to the

distinct point of time, yet during that winter at the city of

Washington, Colonel Burr signified that he was organizing a

secret expedition, to be moved against the Spanish provinces on

the south-western frontiers of the United States, I understood;

under the authority of the General Government. From our

existing controversies with Spain, and from the tenor of the

President’s Address to both Houses of Congress, a conclusion

was naturally drawn, that war with that country was inevitable.

I had then just returned from the coast of Africa; and having

been for many years employed on our own frontiers, and on a

foreign coast still more barbarous and obscure, I knew not the

extent of the reputation which Colonel Burr sustained in the

consideration of his country. The distinguished rank which he

had held in society, and the strong marks of confidence which

he had received from his fellow-citizens, gave me no right to

doubt of his patriotism. As a military character, I had been

made acquainted with him, but not personally; and I knew none

in the United States in whom a soldier might more surely have

confided his honor, than in Colonel Burr. In case of enmity to

this country, from whatever quarter it might come, I thought

it my duty to obey so honorable a call as was proposed to me.

Under impressions like these, I did engage to embark in the

enterprise, and did pledge my faith to Colonel Burr. At several

interviews, it appeared to be the intention of Colonel Burr to

instruct me by maps and other documents, of the feasibility

of penetrating to Mexico. At length, from certain indistinct

expressions and innuendoes, I admitted a suspicion that Colonel

Burr had other objects. He used strong expressions of reproach

against the Administration of the General Government; accused

them of want of character, want of energy, want of gratitude.

He seemed desirous of irritating my resentment by reiterating

certain injurious strictures cast upon me on the floor of

Congress, on certain transactions on the coast of Africa,

and by dilating on the injuries which I had sustained from

the delays in adjusting my account, for moneys advanced for

the United States; and talked of pointing out to me modes

of honorable indemnity. I will not conceal here that Colonel

Burr had good grounds to believe me disaffected towards the

Government.”

Here, Mr. President, we find that General Eaton also was deceived, so

completely deceived as to engage himself in the enterprise. Here is also

evidence of the estimation in which Aaron Burr was held at Washington,

the seat of the General Government, where Congress were assembled, and

Mr. Smith was attending as a member of the Senate, the forepart of the

year 1806, the very year when Mr. Smith is to be suspected of a crime,

for extending to Colonel Burr the rights of hospitality: nor does General

Eaton suspect the views and projects of Colonel Burr to be unlawful or

improper, until he began to use strong expressions of reproach against

the Administration. General Eaton was also a man dissatisfied with the

Administration.

It is asked how it was possible for Colonel Burr to have been so long

with Mr. Smith and not have disclosed to him his plans, as he had done

to others. The reason is obvious; Commodore Truxton was dissatisfied

with the Government, and full of resentment; he was, therefore, the

man most likely for Aaron Burr to apply to, expecting, no doubt, to

engage him in his projects; to him he would be likely to communicate

his sentiments and feelings with freedom. Far otherwise was the case of

Mr. Smith. He was enjoying the sunshine of the Government; he was going

on in the full tide of prosperity; his fellow-citizens had bestowed on

him the highest honors in their gift. He was a Senator of the United

States; the Administration had extended to him their patronage and favor,

by giving him contracts for supplying the army, and building gunboats,

lucrative employments. Aaron Burr could not expect to engage this man

in any treasonable plot against the Government, until he should have

made him willing to sacrifice all his honors and all his prospects; and

to make the communication without engaging him, was to defeat all his

prospects; knowing that Mr. Smith could have no possible wish for a

change, he would be the last to whom he would dare to make a disclosure

of his projects. There were reasons, and strong reasons, why he should

wish to preserve the confidence of Mr. Smith, which made it important to

him to be on good terms with him, so long as he was attempting to blind

the eyes of the people, and make them believe he was acting in concert

with the Government; to do which, there could not have been a more ready

expedient than to take up his lodgings at the house of the contractor for

the army of the United States, and to appear to possess his confidence.

All his art, all his address, therefore, would be made use of to deceive

Mr. Smith, and make him believe his views and projects were fair and

honorable. This will fully explain the appearance of confidence which

seems to have existed between Mr. Smith and Colonel Burr, as well as

their correspondence, previous to the President’s proclamation.

The gentleman from Massachusetts thinks the story about the settlement

of the Washita lands so ridiculous and the disguise so thin, that Mr.

Smith must have seen through it, and known that Aaron Burr’s projects

were unlawful; and from that circumstance draws presumption of guilt. Is

it surprising that Mr. Smith in his situation, and with the information

he possessed, should believe this story, when a gentleman of Commodore

Truxton’s discernment, and after having had a much more full development

of Colonel Burr’s views and projects, believed it, and which in his

deposition he affirms to be the fact? In answer to the following

question, put by Colonel Burr, “had you reason to doubt my intention to

settle lands?” Commodore Truxton answered, “If there was no war, I took

it for granted that was your intention.” Nor is it so astonishing as the

gentleman seems to think it, that Mr. Smith should consent to let his

two sons go with Colonel Burr. It is the wish of every parent to see his

children well established; and what is more profitable, or promises a

more advantageous and certain establishment, than the settlement of new

lands? People are generally induced very readily to believe what they

wish, and is it at all surprising that Mr. Smith should be easily induced

to think well of a project which was proposed to benefit his own sons?

Surely his participation in Aaron Burr’s treason cannot be presumed from

such circumstances.

The conduct of Mr. Smith from the first moment that official information

was given to the people of the United States, that Aaron Burr’s projects

were treasonable or unlawful, was such as, instead of exciting suspicion

of his being an accomplice, merits the applause of his country. Not like

a timid traitor, affrighted at the rustling of a leaf, did he endeavor to

conceal the intercourse and correspondence between him and Aaron Burr; or

like a bold traitor attempt to defeat the measures adopted to counteract

the project and arrest the culprits; or to paralyze exertion by casting

ridicule upon them, as did that prime patriot Glover, the accuser of Mr.

Smith? No, sir, the day after the President’s proclamation arrived, he

writes a letter to the Secretary of War informing him of the substance of

Aaron Burr’s communication to him. He finds that the militia called into

service on this occasion, were destitute of arms, and unable to obtain

them from the public stores of the United States, though application had

been made for that purpose by the commanding officer; and that without

arms they could render no service. He goes in the night to the keeper of

the arms, and endeavors to persuade him to deliver them out, who still

refused, though shown the President’s proclamation, without an order from

the Secretary at War; fearing he might lose his office for acting without

orders. Under these circumstances, this same John Smith, charged with

being an associate of Aaron Burr in this very treason, pledged his own

private obligations for ten thousand dollars to indemnify the officer

for delivering out the arms. This was done, not after Aaron Burr was

arrested, or there was a prospect of the project’s being defeated; but

immediately, on the first alarm excited by the President’s proclamation,

and the spirited and patriotic exertions of the State of Ohio.

The gunboats which Mr. Smith was building, and which his accusers have

intimated were intended for Colonel Burr, were afterwards carried down

the river to New Orleans and delivered to the order of General Wilkinson;

and all the provisions purchased by Mr. Smith appear to have been

fairly and promptly delivered to our army; not a man--not a musket--not

a barrel of flour--not a single article of provisions of any kind--or

any thing that could aid or comfort Colonel Burr in his expedition,

has ever been furnished to him or any of his agents. How then has Mr.

Smith participated in the treason of Aaron Burr? I find no evidence

of the fact. I can discern no reasonable ground to suspect any such

participation.

The testimony of Colonel Taylor, whom I deem a man of honor and truth,

furnishes one other ground from which a presumption is attempted to be

drawn to implicate Mr. Smith. He says that in conversing with Mr. Smith

about certain political publications in a newspaper, signed the Querist,

in which a division of the Union and a separation of the Western from

the Atlantic States was advocated, he understood Mr. Smith to advance

those sentiments as his own. Mr. Smith says he only described them as

the sentiments of the writer. Suppose Colonel Taylor’s recollection to

be correct, what crime was there in advancing mere speculative opinions,

or expressing his sentiments on that or any other subject, provided he

violated no law. Are we not in a free country, in which it is lawful to

speculate on the science of government as well as any other? If that

privilege be denied, ours will no longer deserve the name of a free

country. But is it not possible that Colonel Taylor may be mistaken?

How often do we find conversations which take place among friends

misunderstood and incorrectly stated! Every day’s experience shows us

that even in public debate, in this Senate, the observations of gentlemen

are so misstated as to require explanation. But Dr. Sellman’s deposition

removes all doubt; he says, and he is admitted to be a man of good

character, that he understood Mr. Smith only to have repeated, not his

own sentiments, but those of the Querist. Dr. Sellman testifies:

“The first persons I approached were Mr. John Smith and Colonel

James Taylor. After attending some time to the conversation,

I noticed a reference was occasionally made to a publication

or publications that had appeared in the Marietta paper. For

some time I was at a loss to determine whether those gentlemen

were expressing their own opinions, or those contained in that

publication, for I was not present at the commencement of the

conversation, though it did appear to me to be a detail of the

opinions set forth in that publication. As it is now impressed

on my mind, I believe, to more fully satisfy myself, I asked a

question. Nor can I perfectly remember, whether I intended the

question particularly for Mr. Smith or both of the gentlemen,

but believe it was intended for Mr. Smith. Do you expect or

apprehend an early separation of the Union? To which Mr. Smith

replied, not in my lifetime; and I hope and pray to God I may

never live to see it, whether it takes place sooner or later.”

Here can be no mistake; so far from engaging in a treasonable plot to

sever the Union, he deprecated such an event in the most solemn manner.

Where then is the evidence whereon we can ground so important a vote as

that which shall adopt the resolution on your table? A vote which is to

disrobe a Senator of his office and of his honor? Nothing but jealousy,

that jealousy which frequently attaches itself to a charge of treason

and conspiracy, and must in this case have taken hold of the mind of the

gentleman from Massachusetts, could have induced a belief that there was

evidence to prove on Mr. Smith a participation in the conspiracy of Aaron

Burr. That master of the human heart, Shakspeare, says--

“----Trifles, light as air,

Are, to the jealous, confirmations strong

As proofs of holy writ.”

The truth of this is remarkably verified in the case before us. Is there

not some reasons to apprehend that there has been too great a disposition

to convert suspicion into proof? Ought we not to be on our guard when

it is proved that there has been a powerful combination of men, calling

themselves a republican society, to ruin Mr. Smith, the individuals of

which, when called before a magistrate to testify, declare that they

are bound to secrecy by a solemn obligation to the society, which is

paramount to their oath, when sworn as witnesses, and which will not

admit of their disclosing any facts, or their proceedings, any farther

than they are permitted to be made public by the society? And in sundry

of the depositions on your table they have accordingly refused to answer

questions, and in some instances to testify at all. Such a society

disgraces the name of Republican, by acting on principles tyrannical and

oppressive.

Mr. GILES.--Mr. President: I am called upon as a member of this Senate to

pronounce an opinion upon the following resolution:

“_Resolved_, That John Smith, a Senator from the State of Ohio,

by his participation in the conspiracy of Aaron Burr, against

the peace, union, and liberties of the people of the United

States, has been guilty of conduct incompatible with his duty

and station as a Senator of the United States, and that he be

therefor, and hereby is, expelled from the Senate of the United

States.”

A declaration upon this subject ought not to be made but upon the most

attentive examination of the evidence produced in the case, and the

most mature deliberation thereupon. The sentence to be pronounced is

important to the justice of the United States; but more particularly so

to the reputation of the person accused; it will have also an inseparable

influence upon that of his family. To him and them its effects are

all-important. The resolution solemnly and unequivocally asserts, that

John Smith, &c., participated in the conspiracy of Aaron Burr. Before

I can make this assertion, I must have some evidence of the fact. I

must acknowledge, that upon the most attentive examination of all the

papers, and the most respectful attention to all the arguments in the

case, I have not been able to discover any satisfactory evidence of that

fact. Yesterday I paid great attention to the eloquent, dignified and

candid observations of the gentleman from Massachusetts (Mr. ADAMS),

both as to the jurisdiction of the Senate to inquire into this case, and

the evidence exhibited in support of the charges against the accused.

The gentleman from Massachusetts, I am perfectly convinced, has been

influenced in the whole course of this inquiry by the purest and most

laudable motives; and I think he is justly entitled to the thanks of

the Senate for the judicious conduct he has recommended to be pursued.

I perfectly concur with that gentleman in opinion, on the point of

jurisdiction; and upon a retrospect of the whole proceedings of the

Senate, I am happy to say, that it appears to me the best course for

the purposes of justice has been pursued that could have been devised

in the novel and difficult case presented for consideration. A liberal

indulgence has been given to the accused to procure testimony in his

defence; and the witnesses implicated have been protected from injury,

by requiring that they should have notice of the time and place of

taking all depositions affecting their credibility. The only ground

of difference in opinion between the gentleman from Massachusetts and

myself is, in the interpretation of the evidence in the case. I shall

state the points of difference between us upon this subject, without any

other argument than what may be necessary to explain the reasons of this

difference.

The first point of difference relates to the declarations of Aaron

Burr. From these declarations, although general in their nature, and in

no instance made in relation to the accused, inferences of guilt are

attached to him. In almost every case, to apply the declarations of one

man to the condemnation of another, would not be a just rule of evidence;

in this case, it would be peculiarly unjust. Because it is well known

that Burr was in the constant habit of making misrepresentations in

relation to other persons, and that he was influenced by a particular

motive in doing so. He appeared to consider that as one of the most

effectual means to enhance the importance and promote the success of

his enterprise. If his declarations are to be admitted as evidence

against other persons, they would apply to some of the most respectable

citizens of the United States as well as to the accused, which it is not

pretended would be just or correct in relation to them; and I can see

nothing in his observations bearing on the case of Mr. Smith, that would

not apply with a greater force against others, who are neither implicated

nor suspected. I therefore put Burr’s declarations entirely out of the

case, and disregard all inferences drawn from them.

The next point of difference between the gentleman and myself, arises

from a suggested inconsistency between the letters, the affidavits,

and the answer of Mr. Smith. I have paid particular attention to these

papers, connected with the remark made by the gentleman, and am unable

to discover the inconsistency suggested. They appear to me to be

substantially the same. The remark was, that in one of these papers Mr.

Smith states, that Burr did not disclose to him any of his objects; in

another he admitted that he did disclose to him his object of settling

his Washita lands. The remark which occurs to me in reply is, that Mr.

Smith merely states an immaterial fact in one paper, which he omits

in another, as unnecessary. In this I see neither contradiction nor

inconsistency. But the real explanation of this incidental circumstance

will be found in the papers themselves. The one omitting the fact in

question, in speaking of the objects of Burr, evidently alludes to the

unlawful objects of which he has since been accused, and which did not

comprehend the settlement of the Washita lands. This circumstance,

therefore, must in any point of view be deemed trivial unless connected

with some other of more importance; and according to my explanation of it

of no consequence at all. I would here remark, that the fact asserted in

the resolution, is susceptible of the clearest and most certain proof,

and is of such a nature, that if Mr. Smith had committed it, it would

be scarcely possible for him to escape detection by positive proof. I

am therefore not satisfied to form my opinion on trivial circumstances,

particularly when so easily and naturally susceptible of explanation,

consistently with innocence. Mr. Smith’s own conduct is the sole

criterion by which he ought to be judged. If this standard should once

be departed from, and questionable incidents resorted to, instead of

obtaining truth, we shall probably fall into error.

The gentleman from Massachusetts and myself, in our consideration of

this case, concur in the entire exclusion of the testimony of Elias

Glover and all the papers connected with it. We, in one respect,

however, differ on this part of the subject. He read and relied upon the

deposition of Major Riddle forwarded by Glover, which I exclude from all

consideration--not because I know any thing injurious to the character

of that gentleman; nor because I conceive the contents of the deposition

incapable of explanation, consistently with the innocence of Mr. Smith;

but on account of the manner of taking, and presenting it to the Senate.

This deposition with others appears to have been taken and forwarded by

Elias Glover, for the purpose of implicating Mr. Smith. They were taken

without notice, and in the absence of Mr. Smith, although I believe he

was at the time of taking them in the same town where they were taken.

Some of these witnesses had been summoned to testify in his favor and

in his presence--part of them refused to attend, part of them attended

and refused to answer all questions put to them by Mr. Smith. I consider

this conduct as such a departure from every thing that is just, fair, and

honorable, and an evidence of such an incorrect state of mind in relation

to Mr. Smith, that I do not think they are entitled to the respect

of evidence in the examination of his case; I therefore exclude them

altogether.

I consider this conduct as disrespectful to the Senate, and, on the

part of Glover, altogether inexcusable. Because, when the Senate were

informed that Mr. Smith intended to attempt to discredit the evidence

of Glover, they imposed a positive condition on him, that Glover should

have reasonable notice of the time and place of taking all depositions

for that purpose; thus manifesting a laudable tenderness for his

reputation, which he has strangely repaid in this disrespectful attempt

upon the fairness, justice, and candor, of their proceedings. I cannot

forbear making one more observation on the conduct of Elias Glover;

he appears, throughout the whole of the depositions taken by him and

in his presence, to endeavor to cover his own misconduct by enlisting

in his favor the party feelings which he presumes to attribute to the

Senate; thus he has invariably asked, whether he was not a zealous

Republican, and firm supporter of this Administration? I consider this

conduct as an unjustifiable and indelicate attack upon the justice

and candor of the Senate, whilst it furnishes a poor apology for his

own aberrations from the truth; it has a tendency, and must have been

intended, upon a question of guilt or innocence, to draw the Senate from

the immutable principle of justice and truth, _as the standard of trial_;

and to substitute, in their stead, the dangerous touchstone of party

sensibility. I have had too long experience of the correct motives which

actuate the Senate in all their deliberations, to feel any apprehensions,

in the present case, from these unfortunate attempts; but it is time the

world should know that they are improperly applied, when addressed to the

Senate of the United States.

Having candidly stated the impressions upon my mind made by the portion

of the papers just alluded to, and the observations of the gentleman from

Massachusetts thereupon, I will now proceed to examine the other papers

more relied on by him, and entitled to more respect as evidence. The

course the gentleman pursued was fair and candid, and well calculated

to give a correct view of the conduct and object of the accused; I

shall, therefore, pursue the same course, which was to take the facts in

their chronological order. The first fact, in relation to Mr. Smith’s

conduct, to which our attention has been called, was on the 4th of

September, 1806. On this day Burr, having previously addressed a note

of invitation to Mr. Smith, presented himself at Mr. Smith’s house,

where he was hospitably received and entertained, until the tenth of

the same month. Burr had, before this time, been at Blannerhasset’s

Island, where it is probable, in concert with Blannerhasset, certain

pieces, under the signature of the Querist, were written; and, about the

time of Burr’s leaving the island, were published. The object of these

pieces evidently was to make an experiment upon the disposition of the

Western people, as to the separation of the Union, then certainly in the

contemplation of Burr. It was an object near his heart, and, no doubt,

deemed all-important to the success of his ambitious views. Mr. Smith

states that this subject was never mentioned by Burr to him during his

stay at Mr. Smith’s house, from the 4th to the 10th of September. The

observation made upon this part of the evidence is, that it is strange

that Burr should not have mentioned this subject, under the peculiar

circumstances of the case. I concur perfectly in the observation. I

think it strange that Burr should not have mentioned the subject; but

am I to infer that he did mention it, merely because it is strange that

he should not have mentioned it? Is its being strange that it did not

happen, evidence of the fact that it did happen; particularly, when

there is no other evidence of the fact, but all the evidence upon that

point is against the fact? I will here make an observation, of a general

nature, which has had great weight with me in forming my opinion upon

the whole merits of this case. It is, that it does not appear, from

any part of the evidence, that Burr deemed it prudent, at any time, to

disclose his illicit objects to Mr. Smith; or that he ever considered Mr.

Smith as a safe depositary of his secrets. This want of confidence in

Mr. Smith, for his illicit objects, is discernible in many parts of the

evidence, and this consideration alone lessens the presumption of Burr’s

making the separation of the Union a subject of conversation whilst at

Mr. Smith’s house. Burr, also, would naturally be cautious and reserved

upon that subject, until the experiment, then about to be made on the

people, should disclose itself, and some certain estimate be formed of

its effects. Again, sir, whilst Mr. Smith has solemnly sworn that such

conversation did not take place, and there is no evidence whatever to

show that it did--there are other circumstances strongly supporting

his assertion. It is known that Burr generally disclosed his plans to

persons unfriendly to the Administration, and feeling strong excitements

and irritations against it. He considered such persons only fit for his

purposes. In this, however, much to the honor of American citizens, he

was mistaken. But he had no reason to believe Mr. Smith was a person of

this description. Very far otherwise. For, independent of Mr. Smith’s

general attachment to the Administration, he held the dignified station

of Senator, and a profitable contract under the Government: Burr had no

reasonable expectation that Mr. Smith was ready to abandon these certain

advantages for the uncertain prospects arising from Burr’s wicked and

visionary projects; and, of course, would be cautious of making such

an unpromising attempt; one which, if it failed, would subject him to

certain and instantaneous detection. Another strong circumstance in

favor of this conclusion, is derived from Burr’s letter to Mr. Smith,

of the 20th of October, 1806. One of the expressions alluded to, is the

following: “I have never written or published a line on this subject,

(the separation of the Union,) nor ever expressed any other sentiments

than those which you have heard from me in public companies at Washington

and elsewhere, and in which, I think, you concurred.” Here is a direct

reference to this subject, but it is not intimated that any conversation

took place at Smith’s house in relation to it, but “in public companies

at Washington and elsewhere.” As far, therefore, as mentioning the

conversation as happening at other places, and omitting it as having

happened at Mr. Smith’s house, upon a recent visit there, can go, it

serves to show that such conversation, in all probability, did not take

place there, and leaves a very strong inference in favor of Mr. Smith’s

statement. Am I, then, to infer a fact of guilt against all these

circumstances in favor of innocence? My mind is incapable of making such

an inference. It would be, to convert the rules of the evidence of facts

into improbable grounds of inducing suspicions--error, not truth, must be

the consequence of such substitution.

The next evidence in point of time from which some circumstances

of suspicion are inferred against Mr. Smith, is the testimony of

Colonel James Taylor. To this evidence I concur with the gentleman

from Massachusetts in paying great respect, because it was given with

intelligence, candor, and circumspection, highly honorable to Colonel

Taylor. The substance of his testimony is, that some short time

after the 10th September, and after the pieces under the signature

of the Querist had been published, and become the subject of general

conversation, being in company with Mr. Smith and others, in Cincinnati,

the sentiments avowed in those pieces became the subject of a particular

conversation, in which, according to the impressions made on his mind,

Mr. Smith advocated a separation of the Union; and he thought, not only

delivered this opinion, as an opinion recommended by the Querist, but

as his own. I differ in several important respects with the gentleman

from Massachusetts as to the true explanation of this testimony, taken

in connection with other evidence, bearing irresistibly upon the same

point. In the first place, it is to be ascertained whether Mr. Smith

really did express this opinion in the sense imputed to him by Colonel

Taylor, or whether Colonel Taylor is not mistaken in that respect? And,

in the next place, whether, if he did so express himself, it was done

with any mischievous intent?--both these circumstances being necessary

to constitute a criminal act. I am strongly inclined to think, indeed I

am almost perfectly satisfied, that Colonel Taylor is mistaken in this

particular point of his evidence. There is part of Colonel Taylor’s

own evidence, which furnishes strong considerations for caution in

interpreting the rest. The candor and circumspection observed by the

deponent, in this particular point of evidence, is so honorable to

him, that I beg leave to present it to the Senate in his own words.

After answering many questions put to him by Mr. Smith, Colonel Taylor

concludes his evidence with the following voluntary observation: “I beg

leave further to state, that Mr. Smith has generally been viewed as a

friendly, benevolent, worthy man, and his family, (consisting of an

amiable wife and daughter, and several very promising sons,) have been

considered entitled to, and held a place in the first circles of society

in our quarter.”

What could have induced Colonel Taylor to make this observation upon

closing his evidence? There is no doubt, sir, it was intended as a

caution to the Senate in the interpretation of other circumstances,

although related by himself. It evidently arose from a consciousness that

those circumstances were vague and uncertain, and that his impressions of

them might be mistaken. It was the spontaneous conviction of an amiable

mind, laboring under an impression that innocence might become the victim

of its own honest misconceptions. I will now state my reasons for the

conviction that Colonel Taylor was mistaken in supposing that Mr. Smith

spoke of the separation of the Union as an opinion of his own, and not as

the opinion inculcated by the Querist.

The opinions expressed in the Querist had not only become the subject

of general conversation, but were the subject of that particular

conversation. Mr. Smith probably recited these opinions in an unguarded

manner; and from that circumstance, it was not unnatural that Colonel

Taylor’s impressions might have been formed. This appears from the

deposition of Doctor Sellman, who was present at the same conversation;

and swears expressly that he was induced to put this question to Mr.

Smith, most probably from the unguarded manner of expressing himself: Are

these your own opinions, or those expressed from the Querist? To which

Mr. Smith replied, they were the opinions of the Querist, and not his own

opinions; and added, that he deprecated a separation of the Union, and

hoped to God never to live to see the day when that event should take

place. Here is the positive evidence of Doctor Sellman to the particular

fact in question; whereas Colonel Taylor speaks of the impression made

on his mind by the whole tenor of the conversation. Colonel Taylor must

therefore be mistaken, or Doctor Sellman wilfully forsworn. Would

it be proper to make this presumption against Doctor Sellman? Who is

Doctor Sellman? A gentleman of irreproachable character; the friend

and brother-in-law of Colonel Taylor; and, I believe, the friend of

the Government and of the Administration. Doctor Sellman does not stop

here; he swears that he is in habits of intimacy with Mr. Smith, and

that he never did, before or since that period, hear Mr. Smith express

any opinion in favor of a separation of the Union, but has often heard

him express opinions directly and positively against it. Does Colonel

Taylor contradict this statement? No, sir, but confirms it. He also

swears that he never heard Mr. Smith express that opinion at any other

time before or since. Now, sir, as Colonel Taylor himself states that

the pieces signed the Querist, were the subject of the conversation in

question, and that he never before or since that time, heard Mr. Smith

express analogous opinions with those of the Querist; and when Doctor

Sellman swears positively, that during that particular conversation,

he put the identical question to Mr. Smith, Are you speaking your own

opinions, or those of the Querist?--and that he unequivocally answered,

not his own, but those of the Querist; and also swears positively that he

never did, before or since that time, hear Mr. Smith express analogous

opinions to those of the Querist, but often the reverse--would it not

be a strange perversion of the rules of evidence to say, that on that

particular occasion alone, he expressed opinions in direct hostility with

those expressed during the whole course of his life, both before and

afterwards? But this is not all. This case furnishes evidence still more

conclusive, if possible, in favor of my interpretation.

If Mr. Smith had been in the habit of expressing this opinion, would

not the zeal, the activity and the intelligence of Elias Glover and his

associates, have discovered and communicated it? Men who, not content

with the most inveterate accusations and persecutions against Mr.

Smith, in their individual capacities, have formed clubs, and at length

associated themselves in a corporate character under the imposing name

of the Republican Society, for that and other purposes. After their

profusion of other charges, which they could not substantiate, is it to

be presumed that they would have omitted this charge, if it had been

true, and thus could have substantiated it? Their not having made, is

almost conclusive proof with me that it did not exist. But further, what

does General Carberry say upon this subject? That he is in habits of

intimacy with Mr. Smith, and that he never heard him express a sentiment

in favor of the separation of the Union, but often the reverse. That

he did, however, on one occasion, hear Colonel James Taylor express an

opinion, in company with several persons, that a separation of the Union

would take place at some distant time, say ten or twelve years. And

upon his asking Colonel Taylor, after retiring from the company, if he

did not think it imprudent to express that opinion, even speculatively,

Colonel Taylor admitted that he thought it was, and made some patriotic

observations on the occasion.

This leads me to examine the second question in relation to this point.

Even admitting that Mr. Smith did express the opinion attributed to him

by Colonel Taylor, _as his own_, was it done with any criminal intent? I

am satisfied it was not.

I cannot help remarking here, that I do not concur with the gentleman

from Connecticut, (Mr. HILLHOUSE,) who seemed to intimate that there

was nothing criminal in expressing speculative opinions in favor of

a separation of the Union. In my opinion, if the expression of that

speculative opinion be accompanied with an intent to gain proselytes,

and thus to effect the object, it is highly criminal; because it is an

opinion tending directly to subvert the Constitution and Government

of the United States, and to attempt that object in any way, I deem

highly criminal. What is treason but speculative opinions against the

fundamental principles of the Government, accompanied with an attempt to

carry such opinions into effect by force?

The only difference, therefore, between these offences, consists in this:

that the criminal object in the one case is to be effected by force; in

the other by persuasion. But I do not believe that Mr. Smith could have

any such object in view. To whom was this conversation addressed? To

gentlemen of the first respectability--known to be firm friends of the

Government. To Colonel Taylor, to General Findley, to Dr. Sellman, &c.,

&c. Could Mr. Smith presume for a moment that he could make proselytes

of gentlemen of this description? Could he suppose that they were fit

objects to be used in illicit enterprises? Certainly not. Does either

of them state that he made any attempts of this kind? Certainly not. Is

there any other instance of his having expressed any opinion in favor of

a separation of the Union during the whole course of his life? Certainly

not. This is the only solitary instance of such an expression that

has been adduced or pretended. Is there any criminal intent ascribed

to Colonel Taylor for the expression of a similar opinion to General

Carberry? Certainly not. What rule of evidence is applicable to Mr. Smith

which is not applicable to Colonel Taylor? Is it just to condemn one

man for the expression of an opinion, when the expression of the same

opinion by another does not even subject him to suspicion? From all these

circumstances I am satisfied, first, that Mr. Smith did not express the

opinion in favor of the separation of the Union, in the sense attributed

to him by Colonel Taylor; and, in the next place, if he did, it was not

expressed with any criminal intent. The next evidence, in point of time,

from which inferences are drawn injurious to Mr. Smith, is the testimony

of Peter Taylor. It relates to circumstances which took place at Mr.

Smith’s house on the 23d of October, and shortly afterwards. The first

observation made in relation to this point is, that Mr. Smith, in his

answer, states that Peter Taylor is a man unworthy of credit, for several

reasons mentioned by him, and that he was incorrect in his evidence in

the recital of several incidental circumstances; whereas it is said that

Peter Taylor is a man of fair character, though ignorant and uninformed,

and that his testimony is unimpeached. I readily admit that Mr. Smith’s

impressions in relation to Peter Taylor’s character are more unfavorable

than are warranted from the state of the evidence before the Senate; but

this is not wonderful, when all circumstances are considered. When it is

considered that a deadly wound to Mr. Smith’s character was apprehended

by him to be about inflicted by Peter Taylor’s evidence, which consisted

principally in the recital of incidental circumstances, in some of which

he was evidently mistaken; when all the knowledge Mr. Smith had of him

was, that he was one of Blannerhasset’s servants, and presumed to be both

ignorant and uninformed, it is not wonderful that Mr. Smith should have

entertained a worse opinion of him than he merited; but I see nothing

criminal in this misconception. It was a perfectly innocent and natural

one.

I readily also admit that, in general, Peter Taylor’s character for

truth and veracity stands unimpeached, although it must at the same

time be admitted that he was mistaken in some of the many incidents he

relates; and in one very remarkable instance, to wit: forgetting the

death of his wife, which happened about six weeks before, he mentions a

circumstance of making a further provision for her support. I mention

this, however, not for the purpose of having an injurious influence upon

the general course of his evidence, but merely as a caution against

paying too much respect to the episodes or the incidental circumstances

mentioned by witnesses, and particularly by him. Inferences of guilt

ought very cautiously to be drawn from such sources. But I see nothing

in the material and substantial part of Peter Taylor’s evidence but what

is perfectly consistent with Mr. Smith’s innocence, and, in my judgment,

tends strongly to support it. As this evidence has been very much relied

on to criminate Mr. Smith, let it now be critically examined in a spirit

of justice and impartiality. Peter Taylor’s evidence is substantially as

follows: During the month of October, Mrs. Blannerhasset having become

very much alarmed for the safety of her husband, in consequence of the

resentment of the people in the neighborhood against him, produced by

the pieces under the signature of the Querist, which he acknowledged

himself to be the author of; and believing that Burr had instigated

him to that conduct, dispatched Peter Taylor, her gardener, in quest

of Blannerhasset, with a letter, requesting that he would return to

the island, and would prohibit Burr from again returning thither.

Being uncertain where Blannerhasset might be, but presuming he would

be found with Burr, she directed Peter Taylor to search for him, first

at Chilicothe, and if he should not be found there, at Cincinnati,

and to inquire at the house of John Smith, storekeeper. In pursuance

of these instructions, Peter Taylor being unsuccessful in his search

at Chilicothe, arrived at Mr. Smith’s house in Cincinnati on the 23d

of October. When Mr. Smith came out to him, he inquired for Burr and

Blannerhasset: his object, he states to be, to see if Mr. Smith could

give any account of them. Mr. Smith first told him that he had mistaken

the place; that they were not there, and he knew nothing of them. But

upon telling Mr. Smith that he was one of Blannerhasset’s servants, and

was sent in quest of him by Mrs. Blannerhasset, Mr. Smith took him up

stairs to a chamber he was accustomed to write in, to write a letter

to Mr. Blannerhasset, and told him they would probably be found at Mr.

Jourdan’s in Lexington, Kentucky, where it appears from his evidence

that Mrs. Blannerhasset originally intended that he should go, if he

should not find Blannerhasset before he should arrive there, &c. From

these circumstances, strong instances of guilt are deduced against

Mr. Smith. Making allowances for the eccentricities of Peter Taylor’s

recital, and the inaccuracies of some trivial incidents, which appear

to me very obvious, I see nothing at all improper or unnatural in Mr.

Smith’s conduct. Upon Peter Taylor’s first inquiry, Mr. Smith supposed he

was mistaken in the place. Was not this supposition very natural, when

probably Blannerhasset never was at Mr. Smith’s house at all, and Burr

had left it the 10th of September preceding, nearly six weeks before

that time, and certainly was both mysterious and rapid in his movements?

But when Peter Taylor tells Mr. Smith that he was going in quest of

Blannerhasset, with a letter from Mrs. Blannerhasset, to Lexington; then

Mr. Smith tells him he will probably find them at Mr. Jourdan’s--the

place where it is probable Burr told him he should take his lodgings--and

proposed to send a letter to Blannerhasset by the witness, which he

immediately wrote and gave to the witness; during which time there was

some very common, and, in my judgment, very immaterial conversation,

between Mr. Smith and the witness, perhaps not very accurately related.

So far, certainly, this transaction cannot be deemed criminal; but the

letter addressed to Blannerhasset covered one to Burr, and upon its being

presented to Burr, who was found at Lexington before Blannerhasset was,

Burr premising that it contained one addressed to him, opened it, and

found that he was right in his conjecture. This circumstance is said

to be extremely suspicious, and from it an improper connexion between

Colonel Burr and Mr. Smith is inferred. I readily admit, that in itself

it is a suspicious circumstance; and if the evidence stopped here, it

might be difficult to account for it without some grounds for the

inference of such connection. But I consider the evidence upon this point

complete and positive, and that there is nothing left to inference. In

the first place, it should be recollected that Peter Taylor was in quest

of Blannerhasset with a letter for him from his wife; the presumption,

therefore, was, that he would find Blannerhasset before he did Burr;

and if so, he would not find Burr at all, because his object would be

answered, and his journey at an end. This circumstance, no doubt, induced

Mr. Smith to put his letter to Burr under cover to Blannerhasset; but as

Burr, contrary to Mr. Smith’s expectation, was first found, why did he

open the letter to Blannerhasset, upon the presumption that it contained

one for him? Although I think this circumstance of no importance, as the

letter itself is before us, I will yet state my impressions respecting

it. Burr probably knew that Blannerhasset was an entire stranger to Mr.

Smith; he therefore thought it improbable that Mr. S. would write to

him; Burr could also discover, by feeling the letter, that it contained

an enclosure, and as he had but recently abused Mr. Smith’s friendship

and hospitality, and knew of the unfavorable impressions on the public

mind against every one who had confided in him in any way whatever, it

is but natural to conclude he conjectured that Mr. Smith had availed

himself of the opportunity by Peter Taylor of writing to him upon that

subject. But why are explanations of this circumstance called for?

Why indulge suspicions respecting an object, when the object of such

suspicions is itself before us? Why infer an improper connection, when

the evidence of the real connection, or the object of the correspondence

itself, is before us? This will be found in the identical letter written

by Mr. Smith to Mr. Burr, and delivered by Peter Taylor. Let us discard

inferences, and attend to the contents of the letter, and see if there is

any thing criminal in them. The authenticity of this letter is admitted

by all.

No. 21.

_J. Smith’s Letter to A. Burr, 23d October, 1806, sent by Peter Taylor._

CINCINNATI, Oct. 23, 1806.

DEAR SIR: Having an opportunity of writing a line by one of

Blannerhasset’s domestics, I beg leave to inform you that

we have in this quarter various reports prejudicial to your

character.

It is believed by many that your design is to dismember the

Union. Although I do not believe that you have any such design,

yet I must confess, from the mystery and rapidity of your

movements, that I have fears, let your object be what it may,

that the tranquillity of the country will be interrupted,

unless it be candidly disclosed, which I solicit, and to which

I presume you will have no objection.