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of a high misdemeanor,' although no present- | gation by the Senate of a charge against one of ment or indictment had been found against him, and no prosecution at law was ever commenced upon the case."

By the journals of the Senate it appears that -"On motion, Mr. Martin and Mr. Cocke of the Senate, being sworn, severally testified, on the inspection of the letter said to be written by Mr. Blount, that it was his handwriting, they being acquainted therewith, and having seen him write."

This entry of the journal corresponds with my recollection of the fact. This was legal testimony, and the only testimony admitted on the trial.

Here Mr. Adams called for the reading of that part of the journal which states that Mr. Blount was requested by the President of the Senate to declare whether or not he was the author of the letter. The journal was read, and was as follows, viz. :

The president requested of Mr. Blount to "declare whether or not he was the author of the letter, a copy of which was communicated with the message of the President of the United States of the 3d instant. Mr. Blount declined an answer."

the members of that State of perjury, which had been made in several newspaper publications, but for which no prosecution had been commenced. The Senate did adopt, by a majority of sixteen votes to eight, the report of the committee, purporting that the Senate had no jurisdiction to try the charge, and that the memorial of the Kentucky Legislature should be dismissed. There were indeed sufficient reasons of a different kind assigned in the same report, for not pursuing the investigation in that particular case any further; and your committee believe, that in the reasoning of that, some principles were assumed, and some inferences drawn, which were altogether unnecessary for the determination of that case, which were adopted without a full consideration of all their consequences, and the inaccuracy of which was clearly proved by the departure from them in the instance which was so soon afterwards to take place. It was the first time that a question of expulsion had ever been agitated in Congress, since the adoption of the Constitution. sidered perhaps too much with reference to the the subject being thus entirely new, was conparticular circumstances of the moment, and not enough upon the numerous contingencies to which the general question might apply. Your committee state this opinion with some confidence, because of the sixteen Senators, who in

And

Mr. A. said that this was evidence not admis- March, 1796, voted for the report dismissing sible in a court of law.

Mr. Hillhouse proceeded.

I sat in judgment on that case, and know that Mr. Blount's declining to answer was not considered as evidence. The question was asked, because Mr. Blount might have no objection to answer; he might have supposed the contents harmless, or have been able to give a satisfactory explanation thereof-he being a member of their own body-it was not more than civil to give him this opportunity before they proceeded to prove the letter upon him. It was impossible the Senate should have made the inquiry for the purpose of drawing from Mr. Blount an accusation of himself; or that they should be capable of converting his refusal to answer into proof of guilt, in direct violation of that fundamental principle of civil liberty, that no man shall be compelled to accuse himself. The rule goes so far as to protect even a witness from being obliged to answer any question which may go to criminate himself. What is said respecting the comparison of his handwriting, appears by the journal, not to have taken place in the Senate, or on the trial, but before the committee who made the report, and the preparatory arrangements for the trial.

In regard to the other precedent, the report of the committee goes on to say:

"The event (the expulsion of William Blount) occurred in July, 1797. About fifteen months before that time, upon an application from the Legislature of Kentucky, requesting an investi

the memorial of the Kentucky legislature; eleven on the subsequent occasion, in July, 1797, voted also for the report, which concluded with a resolution for the expulsion of Mr. Blount. The other five were no longer present in the Senate. Yet if the principles advanced in the first report had been assumed as the ground of proceeding at the latter period, the Senate would have been as impotent of jurisdiction upon the offence of Mr. Blount, as they had supposed themselves upon the allegations against Mr. Marshall.

Mr. President, I was not then of the Senate, but feel for the character of its members, and regret extremely, that, in drawing this report, it should have been deemed necessary to mention the then Senate, which was composed of many of the most respectable characters of our country, in a manner that seems reproachful, and to imply that the majority were governed in their votes by political or party considerations. Could it be necessary to state, in such a pointed manner, that, of the sixteen Senators who, fifteen months before, voted for the dismissal of the Kentucky memorial, eleven voted for the expulsion of Mr. Blount, the other five being no longer present, both cases involving the same principles. Was it necessary to insinuate that that subject was considered perhaps too much with reference to the particular circumstances of the moment? It is still more unfortunate that such reproachful insinuations should have been made, seeing, upon a careful examination in the report in the case of Mr.

Marshall, it is manifest that its principles are | pulsion from the exercise of criminal jurisdicentirely misapprehended. That part of the report reads thus:

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Mr. Marshall is solicitous that a full investigation of the subject should take place in the Senate, and urges the principle, that "consent takes away error,' as applying on this occasion to give the Senate jurisdiction. But, as no person appears to prosecute, and there is no evidence adduced to the Senate, nor even a specific charge, the committee think any further inquiry by the Senate would be improper. If there were no objections of this sort, the committee would still be of opinion that the memorial could not be sustained. They think that, in a case of this kind, no person can be held to answer for an infamous crime, unless on a presentment or an indictment of a grand jury; and that, in all such prosecutions, the accused ought to be tried by an impartial jury of the State and district wherein the crime shall have been committed. If, in the present case, the party has been guilty in the manner suggested no reason has been alleged by the memorialists why he has not long since been tried in the State and district where he has committed the offence. Until he is legally convicted the principles of the constitution and of the common law, concur in presuming that he is innocent; and the committee are compelled by a sense of justice to declare, that, in their opinion, this presumption in favor of Mr. Marshall, is not diminished by recriminating publications which manifest strong resentment against him. And they are also of opinion, that, as the constitution does not give jurisdiction to the Senate, the consent of the party cannot give it; and that, therefore, the said memorial ought to be dismissed.

tion, will be sufficiently manifest from a reference to the memorial and report, from which it will further appear, that charge was grounded on what had taken place in the courts of appeals of Kentucky, eighteen months previous to Mr. Marshall's having been appointed a Senator, and had been the subject of newspaper discussion, and was fully known to the legislature, when the appointment was made. In the present case, suppose the Senate had been satisfied that no inquiry was necessary for the purpose of exercising their censorial power of expulsion, and Mr. Smith had requested the Senate to institute an inquiry for the purpose of giving him an opportunity of vindicating his innocence, would not the Senate give him the same answer as was given in the case of Mr. Marshall? "No person can be held to answer for an infamous crime, unless on a presentment or indictment of a grand jury," &c.; "that as the constitution does not give jurisdiction to the Senate, the consent of the party cannot give it." That the Senate have no power, by the constitution, to transform themselves into a court of criminal jurisdiction to try any offence whatever, but a right, only, to inquire into such facts as may be necessary to enable them to exercise the power of expulsion. That the constitutional authority of the Senate to expel a member is not the jurisdiction of a court instituted for the trial and punishment of crimes, but a political power, to be exercised only when necessary for preserving the purity of this branch of the legislature, is evident from the consideration that it does not exempt a person from the liability to be tried and punished by the criminal tribunals of the country. The use that is attempted to be made of this precedent, shows in a strong point of light the impropriety and impolicy of attempting to settle abstract questions, or to detail reasons not necessary for coming to a proper result in the case before us, being liable to be misunderstood or misstated.

Mr. President, the principle laid down in this report, as I then, and now understand it, is, that the constitution not having given to the Senate criminal jurisdiction, the consent of the party could not give it. That it could not refer to the power of expulsion is manifest, because the jurisdiction of the Senate in cases of expulsion, is, by the constitution, express and unlimited; provided, only, that there be the concurrence of two-thirds. When the report says "the constitution does not give jurisdiction to the Senate, the consent of the party cannot give it," it must be understood to be an answer to Mr. Marshall's application for a trial to vindicate his character. The Senate not finding any occasion to pursue the inquiry for the purpose of exercising their censorial power of expulsion, assumed the principle, and in my opinion correctly, that, to establish the principle of innocence or guilt for any other purpose they have no jurisdiction; the consent of the party could not give jurisdiction. To assume such jurisdiction, would be to convert the Senate into a criminal tribunal, which, by the constitution, is reserved to the common law courts, and an impartial jury of the State and district. The reason for distinguishing the power of ex-picion.

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 deposition, hearsay evidence, or surmises founded on mere conjecture or sus

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 or political considerations ought not, cannot influence the decision. Impartial justice and the testimony, alone, must govern, and, I flatter myself, will govern every member of the Senate in the vote he is about to give.

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 of 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 in Cincinnati and Kentucky. What was there suspicious in all this? Who was Aaron Burr? And what was the situation Elias Glover, having volunteered in giving of Mr. Smith in relation to him, that extending his deposition, when no accusation existed, to him the rights of hospitality should excite was to be considered rather an accuser than a suspicion, and fix the imputation of crime? witness. An ex parte deposition, taken under Aaron Burr was a man who had stood high in such circumstances, could not by me be consid- the confidence of the people of the United States ered as evidence on a question of expulsion, -a man who had been associated with the had not the accused member and his counsel present chief magistrate, and had received an agreed to its admission, by which I was bound equal number of votes of the electors for Presito consider it as evidence. And in my mind it dent-a man who had been by the voice of his is so material, that if the force of it had been country placed in the second office in the destroyed by counter testimony, I must have nation-a man who for four years filled the voted for the resolution before us. But I have chair you now occupy, and presided over this listened with pleasure, for it always gives me | Senate with impartiality and dignity; and in a pleasure when a person accused can prove his manner to command universal approbation. innocence, to the evidence adduced, which has So great was the ascendency which he had accompletely done away the force of Glover's quired in this body, that towards the close of deposition. The gentleman from Massachusetts his term of service a bill was passed granting admits, and every member who has spoken him for life the privilege of sending and receivseems to agree, that no reliance can be placed ing letters and packets through the mail free upon it; I shall therefore lay that out of the of postage, a privilege which had never been case; as also the other reference attempting a extended to any but a President of the United direct proof of a participation in Aaron Burr's States and Mrs. Washington. So great was the conspiracy; as in this also I fully agree with the confidence of the majority of the Senate in gentleman from Massachusetts, that it amounts Aaron Burr, as to produce an unusual zeal, no to very little. It is the conduct and confessions doubt a laudable zeal, for passing the bill. It of Mr. Smith, by which his guilt is endeavored was pressed in an unusual manner; and we to be established; and when such talents and were called to a decision when he was himself eloquence as are possessed by the gentleman in the chair; he who could almost look down from Massachusetts are brought to bear upon, opposition. Under such circumstances it was and urged with so much energy and force against painful to oppose the bill; and nothing but a an individual accused of being concerned in strong sense of duty could have impelled any plots and conspiracies against the government one to make opposition. The yeas and nays on of his country, charges peculiarly calculated to the journal will show how great a portion of excite jealousy and suspicion, innocence itself the Senate, of which number was Mr. Smith, could hardly expect to escape. After hearing had so high a confidence in Mr. Burr. At that his able and eloquent argument, I was much time, I had no more suspicion than the majority gratified by the motion of the gentleman from of Colonel Burr's having any treasonable deVirginia, Mr. Giles, to postpone. I wished for signs; though, in opposition to the bill, I did one night to consider the subject; I was not state it as a possible case, that a Vice President, then prepared to make a reply. ambitious of rising to the first office in the The gentleman from Massachusetts has relied nation, and meeting with disappointment, might on the conversations, confessions, and conduct become disaffected and engaged in treasonable of Mr. Smith to prove his guilt, but he does plots to overturn the government, and avail not take the whole conversations and confes-him of his privilege and the mail to circulate sions 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

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. Smith 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 had been 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 feeling and sentiments of a gentleman imperiously demand of him to do? The answer will be anticipated; he could do 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. Smith 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. Smith and his family.

The next thing relied on is, that Mr. Smith being informed of the project and schemes of Mr. Burr, concealed them. The gentleman from Massachusetts has told us that if Mr. Smith 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. Smith states to have been made to him, and there is no proof on the subject but what comes from himself, is as follows, viz: Col. 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 do not notice, for as fast as you will 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 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. Smith, 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. Smith ever manifested any unwillingness to disclose what he knew of Burr's project? 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 prjoect?" 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 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 freIquently 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

tion of Mr. McRae in the same deposition, viz: "Were the remarks which were made on your relation with the navy, calculated to fill your bosom with resentments against the govern

Ans. "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

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|ment?" 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 privyecret expedition to be moved against the Spato, 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 of 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 General 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 further 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 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 suspected that Mr. Smith should have asked such a question. So far from saying any thing to excite Mr. Smith's suspicion, 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 ques

msh 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 acquainted with him, but not personally; and I knew none in the United States in whom a soldier might more surely confide 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 indiscreet expressions and inuendoes, 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 accounts for money 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

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