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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, the members of that State of perjury, which and no prosecution at law was ever commenced had been made in several newspaper publicaupon the case."
tions, but for which no prosecution had been By the journals of the Senate it appears that commenced. The Senate did adopt, by a ma-"On motion, Mr. Martin and Mr. Cocke of jority of sixteen votes to eight, the report of the the Senate, being sworn, severally testified, on committee, purporting that the Senate had no the inspection of the letter said to be written jurisdiction to try the charge, and that the meby Mr. Blount, that it was his handwriting, morial of the Kentucky Legislature should be they being acquainted therewith, and having dismissed. There were indeed sufficient reasons seen him write."
of a different kind assigned in the same report, This entry of the journal corresponds with for not pursuing the investigation in that parmy recollection of the fact. This was legal ticular case any further; and your committee testimony, and the only testimony admitted on believe, that in the reasoning of that, some the trial.
principles were assumed, and some inferences
drawn, which were altogether unnecessary for Here Mr. Adams called for the reading of that the determination of that case, which were part of the journal which states that Mr. adopted without a full consideration of all their Blount was requested by the President of the consequences, and the inaccuracy of which was Senate to declare whether or not he was the clearly proved by the departure from them in
the instance which was so soon afterwards to author of the letter. The journal was read, and take place. It was the first time that a question was as follows, viz. :
of expulsion had ever been agitated in Congress, The president requested of Mr. Blount to since the adoption of the Constitution. And “ declare whether or not he was the author of sidered
perhaps too much with reference to the
the subject being thus entirely new, was conthe letter, a copy of which was communicated particular circumstances of the moment, and not with the message of the President of the enough upon the numerous contingencies to United States of the 3d instant. Mr. Blount which the general question might apply. Your declined an answer."
committee state this opinion with some confi
dence, because of the sixteen Senators, who in Mr. A. said that this was evidence not admis- March, 1796, voted for the report dismissing sible in a court of law.
the memorial of the Kentucky legislature; Mr. Hillhouse proceeded.
eleven on the subsequent occasion, in July,
1797, voted also for the report, which concluded I sat in judgment on that case, and know that with a resolution for the expulsion of Mr. Mr. Blount's declining to answer was not con- Blount. The other five were no longer present sidered as evidence. The question was asked, in the Senate. Yet if the principles advanced because Mr. Blount might have no objection to in the first report had been assumed as the answer; he might have supposed the contents ground of proceeding at the latter period, the harmless, or have been able to give a satisfac- Senate would have been as impotent of juristory explanation thereof—he being a member | diction upon the offence of Mr. Blount, as they of their own body—it was not more than civil had supposed themselves upon the allegations to give him this opportunity before they pro- against Mr. Marshall. ceeded to prove the letter upon him. It was Mr. President, I was not then of the Senate, impossible the Senate should have made the in- but feel for the character of its members, and quiry for the purpose of drawing from Mr. regret extremely, that, in drawing this report, Blount an accusation of himself; or that they it should have been deemed necessary to menshould be capable of converting his refusal to tion the then Senate, which was composed of answer into proof of guilt, in direct violation many of the most respectable characters of our of that fundamental principle of civil liberty, country, in a manner that seems reproachful, that no man shall be compelled to accuse him and to imply that the majority were governed self. The rule goes so far as to protect even a in their votes by political or party considerawitness from being obliged to answer any questions. Could it be necessary to state, in such a tion which may go to criminate himself. What pointed manner, that, of the sixteen Senators is said respecting the comparison of his hand-who, fifteen months before, voted for the diswriting, appears by the journal, not to have missal of the Kentucky memorial, eleven voted taken place in the Senate, or on the trial, but for the expulsion of Mr. Blount, the other five before the committee who made the report, and being no longer present, both cases involving the preparatory arrangements for the trial. the same principles. Was it necessary to
In regard to the other precedent, the report insinuate that that subject was considered perof the committee goes on to say:
haps too much with reference to the particular “The event (the expulsion of William Blount) circumstances of the moment? It is still more occurred in July, 1797. About fifteen months unfortunate that such reproachful insinuations before that time, upon an application from the should have been made, seeing, upon a careful Legislature of Kentucky, requesting an investi- I 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 tion, will be sufficiently manifest from a report reads thus:
reference to the memorial and report, from Mr. Marshall is solicitous that a full investi- which it will further appear, that charge was gation of the subject should take place in the grounded on what had taken place in the courts Senate, and urges the principle, that "consent of appeals of Kentucky, eighteen months pretakes away error," as applying on this occa- vious to Mr. Marshall's having been appointed sion to give the Senate jurisdiction. But, as a Senator, and had been the subject of newsno person appears to prosecute, and there is no paper discussion, and was fully known to the evidence adduced to the Senate, nor even a legislature, when the appointment was made. specific charge, the committee think any further In the present case, suppose the Senate bad inquiry by the Senate would be improper. If been satisfied that no inquiry was necessary there were no objections of this sort, the com- for the purpose of exercising their censorial mittee would still be of opinion that the memo- power of expulsion, and Mr. Smith had rerial could not be sustained. They think that, quested the Senate to institute an inquiry for in a case of this kind, no person can be held to the purpose of giving him an opportunity of answer for an infamous crime, unless on a pre- vindicating his innocence, would not the Sensentment or an indictment of a grand jury; ate give hin: the same answer as was given in and that, in all such prosecutions, the accused the case of Mr. Marshall ? “No person can be ought to be tried by an impartial jury of the held to answer for an infamous crime, unless State and district wherein the crime shall have on a presentment or indictment of a grand been committed. If, in the present case, the jury," &c.; "that as the constitution does not party has been guilty in the manner suggested give jurisdiction to the Senate, the consent of no reason has been alleged by the memorialists the party cannot give it." That the Senate why he has not long since been tried in the have no power, by the constitution, to transState and district where he has committed the form themselves into a court of criminal jurisoffence. Until he is legally convicted the prin- diction to try any offence whatever, but a ciples of the constitution and of the common right, only, to inquire into such facts as may law, concur in presuming that he is innocent; be necessary to enable them to exercise the and the committee are compelled by a sense power of expulsion. That the constitutional of justice to declare, that, in their opinion, authority of the Senate to expel a member is this presumption in favor of Mr. Marshall
, is not the jurisdiction of a court instituted for the not diminished by recriminating publications trial and punishment of crimes, but a political which manifest strong resentment against him. power, to be exercised only when necessary for And they are also of opinion, that, as the con- preserving the purity of this branch of the legstitution does not give jurisdiction to the Sen- islature, is evident from the consideration that ate, the consent of the party cannot give it; it does not exempt a person from the liability to and that, therefore, the said memorial ought to be tried and punished by the criminal tribunals be dismissed.
of the country. The use that is attempted to Mr. President, the principle laid down in this be made of this precedent, shows in a strong report, as I then, and now understand it, is, point of light the impropriety and impolicy of that the constitution not having given to the attempting to settle abstract questions, or to Senate criminal jurisdiction, the consent of the detail reasons not necessary for coming to a party could not give it. That it could not refer proper result in the case before us, being liable to the power of expulsion is manifest, because to be misunderstood or misstated. the jurisdiction of the Senate in cases of expul- I do most fully agree with the gentleman sion, is, by the constitution, express and un- from Massachusetts that the Senate, for the limited; provided, only, that there be the con- purpose of exercising their censorial power of currence of two-thirds. When the report says expulsion, have cognizance of the case before " the constitution does not give jurisdiction to us. That for that purpose, they have cognithe Senate, the consent of the party cannot zance of all crimes and offences, and are not give it,” it must be understood to be an answer bound to wait for the proceedings of the courts to Mr. Marshall's application for a trial to vin- of common law. I further admit, that the dicate his character. The Senate not finding same degree of evidence is not necessary to any occasion to pursue the inquiry for the pur- justify an expulsion of a member, as to convict pose of exercising their censorial power of him before a court and jury. For example, on expulsion, assumed the principle, and in my a charge of treason, two witnesses are necesopinion correctly, that, to establish the princi- sary to a conviction. On such a charge, I ple of innocence or guilt for any other purpose should not hesitate to expel a member on the they have no jurisdiction; the consent of the testimony of a single witness of irreproachable party could not give jurisdiction. To assume character. What I insist on is, that the evisuch jurisdiction, would be to convert the Sen-dence admitted must be legal evidence, and ate into a criminal tribunal, which, by the con- such as would be admissible in a court of law; stitution, is reserved to the common law courts, not ex parte deposition, hearsay evidence, or and an impartial jury of the State and district. surmises founded on mere conjecture or susThe reason for distinguishing the power of ex- picion.
Were I, in deciding this case, to be governed in this case. If all Mr. Smith's conversations by political or party considerations, I should and confessions are taken together, there can incline to vote in favor of the resolution on remain little doubt of his innocence.
But, when we reflect, that agree- The first circumstance in Mr. Smith's coning to the resolution is to disrobe a Senator of duct which is laid hold on, and on which the his honor, to doom a fellow-citizen, an amia- gentleman of Massachusetts has built his arguble family, and an innocent posterity, to per- ment to establish his guilt, is, that Mr. Smith petual infamy and disgrace, party or political has confessed that in September, 1806, he gave considerations ought not, cannot influence the Aaron Burr a hospitable reception under his decision. Impartial justice and the testimony, roof, for four or five days; that he afterwards alone, must govern, and, I flatter myself, will saw him again in Cincinnati and Kentucky. govern every member of the Senate in the vote | What was there suspicious in all this? Who he is about to give.
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 conduçt 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 his treason into every corner of the Union. admitted, and never to be departed from, that The bill was arrested in the House of Reprewhen the confession of the party is taken, the sentatives. whole must be taken together; and not to make The Senate also adopted the following: out proof of guilt by selecting different detached Resolved, unanimously, That the thanks of parts, leaving out other parts that go to explain the Senate be presented to Aaron Burr, in teswhat otherwise might appear criminal. A timony of the impartiality, dignity, and ability strict adherence to this rule will leave little of with which he has presided over their deliberaevidence or even ground of suspicion of guilt | tions; and of their entire approbation of his conduct, in the discharge of the arduous and the Union, or invade the territory of a friendly important duties assigned him as President of power, in amity with the United States? Wae the Senate."
it not, on the contrary, expressly said not to be I was happy on this occasion to unite in dishonorable or inimical to the government? what I considered a just tribute of applause for Was there any reason to suppose our governhis conduct as President of the Senate.
ment would not, in the event of war with This was the close of Aaron Burr's political Spain, accept the services of a corps of voluncareer; this was the last public office he sus- teers, when the policy seems to have been to tained in the nation, and from that time, till rely on volunteers, and laws have frequently Mr. Smith received the pencilled note asking passed calling for, and authorizing the employfor the hospitality of his house for a few days; it ment of such force? The evidence of Mr. was not publicly known that he had done any Smith, had he appeared before the grand jury, thing to take off the impression which his offi- | instead of criminating Colonel Burr must have cial conduct as Vice President, and those public operated in his favor; for, to have headed a acts of the Senate, had made. Under these corps of volunteers under such circumstances circumstances and considering the intimacy would have been laudable. Has Mr. Smith and friendship, which had been contracted ever manifested any unwillingness to disclose while they had been associated in the same what he knew of Burr's project? On the conpolitical body, the Senate of the United States, trary, has he not always done it freely, when what could Mr. Smith do? What did his early there was a fit occasion, not only to his friends, impressions, all the habits of his life, and the but the officers of government? honorable feeling and sentiments of a gentle- But the gentleman from Massachusetts has man imperiously demand of him to do? The compared the case of Mr. Smith with that of answer will be anticipated; he could do no Commodore Truxton, and stated that upon otherwise than extend to him the rights of Burr's disclosing his plans to the latter, he was hospitality, receive and treat him as a gentle asked this all-important question—"Is the exman. Had he been an entire stranger he could ecutive of the United States privy to or connot have done otherwise, without being concerned in the prjoect?” This, says he, ought sidered as having disgraced his native state, for to have been the conduct of Mr. Smith; this he was born in Virginia, so famed for hospi- would have been his conduct if he had been tality, not only to friends, but to strangers. an innocent and honest man. I little thought Had Mr. Smith done otherwise than he did, that Commodore Truxton's deposition would would he not have been disowned as unworthy have been resorted to in this case; a deposition to be called a Virginian? This act of hospi- which had not been read; a deposition not taken tality and politeness is now considered as a on the trial in the presence of Mr. Smith, nor crime, which is to fix indelible disgrace on Mr. | in any way relating to his case. It must be an Smith and his family.
uncommon zeal that could have induced any The next thing relied on is, that Mr. Smith one, possessing the legal knowledge of the being informed of the project and schemes of gentleman from Massachusetts, to have resorted Mr. Burr, concealed them. The gentleman to that as evidence. But, sir, the answer to from Massachusetts has told us that if Mr. this is plain. Mr. Burr did not go as far with Smith had come forward and testified before Mr. Smith as with Commodore Truxton,-otherthe grand jury of Kentucky, Burr would have wise Mr. Smith would probably have asked him been convicted, and his treasonable plot, which the same question. But so much reliance has done so much mischief, arrested. The dis- having been had on Commodore Truxton's declosure which Mr. Smith states to have been position to prove Mr. Smith's guilt, on the score made to him, and there is no proof on the subject of omissions, as well as of what he has done, but what comes from himself, is as follows, I must be permitted to read a part of that deviz: Col. Burr said to him, “Mr. Smith, my position; it is in these words, viz: object in a few months will be disclosed; you “About the beginning of the winter of will not find it dishonorable or inimical to this 1805-6, Colonel Burr returned from the western government. I feel superior to the mean arti-country and came to Philadelphia. He fretices which are ascribed to me; calumniators Iquently in conversation mentioned to me cerdo not notice, for as fast as you will put one tain speculations in western lands. These condown, another will rise up. This much I will versations were uninteresting to me, and I did venture to tell you; if there should be war not pay much attention to them. Colonel Burr between the United States and Spain, I shall requested me to get the navy of the United head a corps of volunteers, and be the first to States out of my head, as he had something in march into the Mexican provinces; if peace view, both honorable and profitable, which he shonld be preserved, which I do not expect, I wished to propose to me. I considered this as shall settle my Washita lands, and make society nothing more than a desire to get me interested as pleasant about me as possible.” Now I ask, in land speculations. These conversations were Mr. President, was there any thing criminal, frequently repeated; and some time in the was there any thing unlawful in all this? Was month of July 1806, Colonel Burr observed there any thing to excite suspicion that Aaron that he wished to see me unwedded from the Burr was engaged in a treasonable plot to sever navy of the United States, and not to think any
more of those men at Washington. He ob- tion of Mr. McRae in the same deposition, viz: served that he wished to see or to make me (I “Were the remarks which were made on your do not recollect which) admiral; for he con- relation with the navy, calculated to fill your templated an expedition into Mexico, in the bosom with resentments against the governevent of a war with Spain, which he thought ment?” inevitable. He asked me if the Havana could Ans. “My bosom was already full enough, not be easily taken in the event of a war. I but certainly Colonel Burr spoke in concert told him that it would require the co-operation with my feelings." of a naval force. Mr. Burr observed that might General Eaton's deposition has been introbe obtained. He pursued the inquiry as to duced under like circumstances, and for the Carthagena and La Vera Cruz—what personal same purpose as that of Commodore Truxton, knowledge I had of those places, and what He testifies that: would be the best mode of attacking by sea "During the winter of 1805-6, I cannot be and land. I gave my opinion very freely. Mr. positive as to the distinct point of time, yet Burr then asked me if I would take the com- during that winter, at the city of Washington, mand of a naval expedition. I asked him if Colonel Burr signified that he was organizing a the executive of the United States was privy ecret expedition to be moved against the Spato, or concerned in the project. He answered msh provinces on the south-western frontiers of me emphatically that they were not. I asked the United States; I understood, under the auhim that question because the executive had thority of the general government. From our exbeen charged with a knowledge of Miranda's isting controversies with Spain, and from the expedition. I told Colonel Burr that I would tenor of the President's address to both Houses have nothing to do with it; that Miranda's of Congress, a conclusion was naturally drawn project had been intimated to me, and that I that war with that country was inevitable. I had declined any agency in those affairs. Mr. had then just returned from the coast of Africa; Burr observed that, in the event of a war, he and having been for many years employed on intended to establish an independent govern- our own frontiers, and on a foreign coast still ment in Mexico; that Wilkinson of the army, and more barbarous and obscure, I knew not the many officers of the navy, would join. I re- extent of the reputation which Colonel Burr plied that I could not see how any of the offi- sustained in the consideration of his country. cers of the United States could join. He said The distinguished rank which he had held in that General Wilkinson had projected the ex- society, and the strong marks of confidence pedition, and that he himself had matured it; which he had received from his fellow-citizens, that many greater men than Wilkinson were gave me no right to doubt of his patriotism. concerned (or would join); and thousands to As a military character, I had been acquainted the westward."
with him, but not personally; and I knew none Mr. President, notwithstanding Colonel Burr in the United States in whom a soldier might had gone much further in communicating his more surely confide his honor than in Colonel plans and projects to Commodore Truxton than Burr. In case of enmity to this country, from he had done to Mr. Smith, and notwithstanding whatever quarter it might come, I thought it those insinuations of weaning him from the my duty to obey so honorable a call as was navy, forgetting those men at Washington, &c., proposed to me. Under impressions like these, -which must have excited suspicion in the mind | I did engage to embark in the enterprise, and of a man of Commodore Truxton's discern- did pledge my faith to Colonel Burr. At sevment, that Colonel Burr's project was unlawful, eral interviews, it appeared to be the intention and not known to or approved by the govern- of Colonel Burr to instruct me, by maps and ment—yet Commodore Truxton in whose honor other documents, of the feasibility of penetratand integrity I have the highest confidence, did ing to Mexico. At length, from certain innot put the question which the gentleman from discreet expressions and inuendoes, I admitted a Massachusetts relies on so mnch, and approves suspicion that Colonel Burr had other objects. so highly as evincing his integrity; and for not He used strong expressions of reproach against asking which, Mr. Smith is suspected of a par- the administration of the general government, ticipation in guilt. It was when Colonel Burr accused them of want of character, want of asked Commodore Truxton directly if he would energy, want of gratitude. He seemed detake the command of a naval expedition, and sirous of irritating my resentment by reiterating not till then, that he put the question. Had certain injurious strictures cast upon me on the Colonel Burr asked Mr. Smith to engage sup- floor of Congress, on certain transactions on plies of provisions, gunboats, arms or men, for the coast of Africa, and by dilating on the inhis expedition, then, and not till then, could it juries which I had sustained from the delays in be suspected that Mr. Smith should have asked adjusting my accounts for money advanced for such a question. So far from saying any thing the United States; and talked of pointing ont to excite Mr. Smith's suspicion, Colonel Burr to me modes of honorable indemnity. I will had expressly declared his object was not dis- not conceal here that Colonel Burr had good honorable or inimical to this government. That grounds to believe me disaffected towards the Commodore Truxton was dissatisfied with the government." administration appears by his answer to a ques- Here, Mr. President, we find that General