Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 3 (of 16) (part 6 of 8)

Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 3 (of 16) (part 6 of 8)

Mr. BIDWELL.--It appears to me that all the objections which have been urged against the amendment under consideration, may be reduced to two. 1. That a forfeiture is necessary to deprive the importers of every motive to introduce any slaves into the country, and thus render the prohibition completely effectual. 2. That if the slaves are emancipated and turned loose in the Southern States, they will be a destructive nuisance to the people of those States. Neither of these objections is, in my apprehension, well founded. If the motion to strike out prevails, another amendment may be made, declaring that the importer has no right to the slaves, which he introduces. This will be a declaration conformable to the state of things, and in exact accordance with the laws of nature and of nations. It is not in order to offer an amendment now, but if the present motion prevails, I design to propose an amendment to this effect. This will answer the purpose completely, and remove from the importer every temptation to engage in this traffic. The idea of forfeiture proceeds wholly on a false principle. It implies that the importer has a right to the slaves. But an amendment like that which I have suggested will declare the fact as it is; it will be conformable to truth. But if the section passes as it now is, with the clause of forfeiture retained, we recognize in our statute book a false principle, which neither the constitution nor the laws of the United States have ever authorized, to wit: that a property may be had in human beings. The constitution and laws have always left the disposition of slaves to the States, and hitherto have never recognized the principle of slavery.

But if we do not forfeit the negroes, the question is asked again and again, with an air of triumph, what is to be done with them? For my part I had rather strike out the section, and do nothing at all, than retain the forfeiture. If we do nothing we shall not increase the evil. They will then be left to the States to dispose of according to the State laws. This will not increase the evil. I am, however, willing to agree to any practicable mode of disposing of them. But at any rate, I am for striking out the forfeiture, and opposed to disgracing our statute book with a recognition of the principle of slavery.

Mr. QUINCY.--Since there is so general an agreement as to the end, I wish it were possible we could unite more perfectly as to the means. Those in favor of forfeiture are anxious for nothing so much as to prohibit totally the importation of slaves. Indeed, it is for this very reason they are in favor of it, because they assert, and to my mind on unquestionable ground, that this is your only effectual means of prohibition. They are also anxious that if they are brought they should not be made slaves in their part of the country. As to their being made free in the Southern States, that is out of the question. The policy of those States, the first duty of self-preservation, forbid it.

The argument of my colleague is, “forfeiture implies a right, vested in importers. Now it is disgraceful to the United States to admit such an implication. The importer has no right. He could acquire none. These persons are free by the law of nature--as free as any of us. The African prince who sold them was a usurper. The purchasers in Africa were trespassers against the law of nature. They cannot acquire any right of property in these persons, and it is shameful for the United States, by forfeiture, to admit it.” Sir, the conclusions of the gentleman are perfectly correct--his principles are solid. No man in this House denies either. Refer this question between the African prince and his subjects, and between the African and his importer, to five hundred juries in New England, and five hundred times a verdict would coincide with the principles and reasonings of my colleague. But the misfortune is, that, notwithstanding all these true and unquestionable principles, the African prince, at this day, does, and, after our law passes, will sell his subjects. To all practical purposes, a title is acquired in them, and they are passed, like other property, from one to another, in their native country. But this is not the worst. A title in this description of persons is not only allowed in Africa, but is, and must be, after your law passes, in a large section of your own country. The gentlemen from that part of the United States tell you that they cannot be allowed to be free among them. The first law, self-preservation, forbids it.

Now this is that real, practical state of things to which I invite gentlemen to look, and on which they ought to legislate.

I ask concerning it, how ought we to reason? What is our duty?

First. Do all you can to prohibit. Next, if you fail in this--if, in spite of your laws and their penalties, this description of persons be brought into the United States, then place yourselves in such a situation as may enable you best to meliorate the condition of this unhappy class of men, consistent with self-preservation, and with the deep stake which an important section of the country has in the policy which you adopt.

On both accounts forfeit. First, because it is the best means of prohibition. The gentleman from Georgia (Mr. EARLY) declares it is the only means by which you can do it effectually. The argument he used on this point, on a former day, is to my mind conclusive. From the situation of the Southern States, particularly Georgia, you can only prevent the traffic by taking away the inducement to purchase. And this can only be done by making the right of every purchaser be forfeited as a penalty. Next, if contrary to your laws they be imported, they are thrown on the humanity of the United States. They are brought here by our citizens, and it is the duty of the National Government to reserve the control of them, so as to be certain that the best is done for the amelioration of their condition that our own safety permits. On this account, forfeit. It is only as a commercial regulation that the National Government can get this control. If we do not take that title in these persons into the United States, which the laws of some States recognize, in those States they are slaves--they must be slaves. Those States can never permit them to be any thing else. This can only be done by forfeiture. The character of your policy will depend upon what you do with them after the forfeiture. Gentlemen reason as if those persons were inevitably to be sold under the hammer. Certainly this is not the necessary consequence. Are they not after forfeiture at your control? May you not do with them what is best for human beings in that condition in which these miserable creatures are, when they first arrive in this country, naked, helpless, ignorant of our language, our climate, our laws, our character, and our manners? Are you afraid to trust the National Government, and yet, by refusing to forfeit, will you throw them under the control of the States, all of whom may, and some of them will, and must, make them slaves?

But the great objection to forfeiture is, “it admits a title.” I answer, first, this does not necessarily follow. All the effect of forfeiture is, that whatever title can be acquired in the cargo shall be vested in the United States. If the argument of the gentleman be correct, and the species of cargo be such as that, from the nature of the thing, no title can be acquired in it, then nothing can vest in the United States; and the only operation of forfeiture is to divest the importer’s color of title by the appropriate commercial term--perhaps the only term we can use effectual to this purpose, and which does not interfere with the rights of the States. Grant that these persons have all the rights of man; will not these rights be as valid against the United States as against the importer; and by taking all color of title out of the importer, do we not place the United States in the best possible situation to give efficiency to the rights of man, in respect to the persons so imported?

But, next, let us agree that forfeiture does admit a species of title, lost on one side and acquired on the other; such as we cannot prevent being recognized in those States where these importations will most frequently take place; I ask, which is best, and which most humane? Admit a title, gain it for the United States, and then make these miserable creatures free, under such circumstances, and in such time, as their condition into which they are forced permits, or deny the possibility of acquiring a title, and leave them to be slaves? But my colleague (Mr. BIDWELL) has a sovereign specific for this. He says, “We do not make them slaves, we only leave them to the laws of the respective States.” But I ask, if the laws of all the States may, and those of some of the States do, and necessarily will make them slaves, “by leaving them to the operation of the laws of these States,” do we not as absolutely make them slaves as though we voted them to be such in this House? To my mind, when we have the power, if we fail to secure to ourselves the means of giving them their freedom, under proper modifications, we have an agency in making them slaves. To me it seems that the amendment proposed, striking out the forfeiture, will defeat the very end its advocates have in view. Really, sir, I fear it will happen to the honorable mover of the amendment (Mr. BIDWELL) as it happened to another celebrated asserter of African rights--I mean the renowned Knight of La Mancha. We all recollect that while that worthy knight was, with all the real honesty in the world, descanting on the moral fitness of things on the eternal, unalienable, imprescriptible rights of man!--that during all that time he was exercising himself and instructing others on these themes--the very persons he had undertaken to deliver--the great African Princess Micomicona, Queen of the great African Kingdom Micomicon, with her father, her mother, her brothers, her sisters, in short her whole family, were left in absolute and irretrievable slavery; their fetters not knocked off, nor their shackles lightened, nor one ray of light thrown in upon their prison. And yet the good knight, with all possible self-complacency, astride of his theories, was couching his lance, scouring the plain, the mirror of philanthropic chivalry, the very cream of the milk of human kindness!

Now, I say, sir, a little more practicable good, and a little less theoretic impulse. Reason and legislate according to the actual state of this description of persons. Place yourselves so as to do the best possible for their good. They are thrown on your mercy. Do not trust to others. You can be most certain this power will not be abused in your own hands. Forfeit--because this is the technical word for getting the control of them, and the only certain way of making them secure of your humanity. But what shall be done with them? That is a subsequent consideration. It is enough for me to know that this House can never do any thing with them which humanity and self-preservation do not dictate. Gentlemen will not pretend that these Africans have more rights by nature than our children. And yet, in every parish, poor children are bound out, without their consent, until they are of age, and of capacity to take care of themselves. These Africans are as helpless, ignorant, and incompetent as such children, and the wisdom of the National Legislature certainly can, and I have no doubt will, devise means to make them useful members of society, without any infringement of the rights of man.

Mr. MACON, (the Speaker.)--I still consider this a commercial question. The laws of nations have nothing more to do with it than the laws of the Turks or the Hindoos. We derive our powers of legislation not from the laws of nations, but from the constitution. If this is not a commercial question, I would thank the gentleman to show what part of the constitution gives us any right to legislate on this subject. It is in vain to talk of turning these creatures loose to cut our throats.

Suppose we leave them as the gentleman from Massachusetts (Mr. BIDWELL) has suggested, what will become of them? They will be smuggled in and made slaves. All the arguments which I have yet heard have served to confirm the opinion that a forfeiture is the only effectual mode of prohibition; and though our sincerity has been doubted with an if, yet I believe every member in this House is solicitous to put a complete stop to this nefarious traffic.

WEDNESDAY, December 31.

Importation of Slaves.

The House proceeded to consider the amendments reported by the Committee of the Whole on the twenty-ninth instant, to the bill to prohibit the importation or bringing of slaves into the United States, or the territories thereof, after the 31st of December.

Mr. SLOAN was decidedly opposed to the amendment. He was aware that some might charge him with departing from his well-known peaceable principles, in contending for so sanguinary a punishment as death. But many crimes inferior to this were punished with death, and he thought that there ought to be a proportion in these things. Mr. S. stated the hardships of the Africans, and the cruel circumstances attending their importation, and insisted on the magnitude of the crime at considerable length.

After some conversation between Mr. SMILIE and the SPEAKER, on a point of order, Mr. DANA called for a division of the question. The question was accordingly divided, the first being on striking out of the bill so much as inflicts the punishment of death.

Mr. ELY was against striking out. He deemed the crime in question as one of the most heinous kind, and one which ought to be punished capitally. But his principal reason for advocating so severe a punishment was, that he thought it the most effectual method of putting a stop to the trade. The other provisions of the bill were, in his opinion, not sufficient. If the punishment of death was inflicted, he presumed no persons would venture to engage in the trade, and run the risk of being punished, especially, as the traffic is one of the most uncertain and perilous kinds. It is said, if you punish with such severity, none will inform; but will any one venture to run the risk under this impression? Mr. E. thought not. Besides, this is the most humane punishment, because it will most effectually prevent the accumulation of miseries that result from the trade. It will, also, remove all the difficulties on the subject of forfeiture, by preventing the introduction of slaves.

Mr. TALLMADGE said he considered the question before the House to be, whether we should strike out that part of the section which attaches the crime of felony to this nefarious traffic, and, of course, annexes to it the punishment of death. He trusted the House would not consent to strike out that clause of the bill, the retention of which should receive his hearty support.

Since I have had the honor of a seat in this House, I can scarcely recollect an instance in which the members seem so generally to agree in the principles of a bill, and yet differ so widely as to its details. There seems to be great unanimity respecting the atrocity of the crime, but a wide difference of opinion as to the measures necessary to prevent it. To me, it is matter of surprise as well as of regret, that gentlemen, who appear so ardently engaged to prevent the introduction of slaves into our country, should not be willing to unite with us in providing for it an adequate punishment. The evils which may be expected to result from this commerce, if persisted in, will fall on the Southern States; and the Eastern and Middle States are accused of carrying it on. If this be the fact, and gentlemen are sincere in their declarations, why will they not unite with us to mete out that punishment which, on their own statements, will fall exclusively on those who are concerned in this execrable traffic from the Northern States?

Mr. MOSELY.--The only objection which has been made against this section of the bill, as it was originally introduced, is, that the severity of the penalty as there prescribed, would probably prevent the law from being carried into execution.

I entirely agree in the justice of the general remark, that it is the certainty, more than the severity, of the punishment, which tends to prevent the commission of crimes; that when the penalty is excessive or disproportioned to the offence, it will naturally create a repugnance to the law, and render its execution odious.

But I would ask, in the first place, what punishment can be considered as too severe to be inflicted on this inhuman and murderous traffic? Viewed in all its consequences, there is hardly to be found, I apprehend, in the whole catalogue of crimes, one attended with more accumulated guilt. I have, indeed, sir, heard no gentleman suggest any thing in palliation of this offence, or deny that it is justly deserving of death. Why, then, are we to presume that the law would not be enforced? The gentlemen from the South assure us that they, and the people whom they represent, are sincerely solicitous to prevent the further importation of slaves into this country, and they will cheerfully and cordially co-operate in the most effectual measures for that purpose. Will they, then, from motives of tenderness to the persons employed in importing them, be unwilling to subject those persons to the punishment they justly merit?

Sir, there is one circumstance worthy of attention, which I think must obviate every objection of this sort. Who are the people engaged in this business? We have been repeatedly told, and told with an air of some triumph, by gentlemen from the South, that it is not their citizens; that they have no concern in this nefarious traffic; that it is the people from the Northern States who import these negroes into the Southern States, and thereby seduce their citizens to become their purchasers. If this be the fact, are we to believe that they will entertain any particular feelings of partiality or passion towards this class of people, or that they will not feel a just degree of indignation towards them, and be disposed to subject them to the most exemplary punishment? And as it respects the great body of the people in the Northern States, at least, I will presume to say, of the State which I have the honor to represent, should any of their citizens be convicted upon this law, so far from charging their Southern brethren with cruelty or severity in hanging them, they would acknowledge the favor with gratitude. When we consider the character of the persons engaged in this traffic, that they are the most hardened and abandoned of the human species, and that it is extremely lucrative, can we suppose that any penalty short of death will deter them from it? I shall be very glad if even this will have the effect.

Mr. LLOYD.--Though this traffic is sanctioned by the Constitution and laws of the United States, I regard it with hatred and abhorrence, and conceive it to be of the highest importance that we take means to put a complete stop to its further continuance. But, in my opinion, the punishment of death is not best calculated to accomplish this object. Besides, it is not proportional to the crime. This subject has not, I conceive, been fairly argued. Very few of the negroes brought into this country are kidnapped and stolen away. Look at the condition of the people of Africa. Three-fourths of those brought into this country are slaves originally, either by descent or conquest. It is a fact that slavery prevails extensively in Africa. Those taken in conquest are disposed of and sent abroad on account of the vindictive spirit of those people. Such is their thirst for revenge, that this is absolutely necessary for the safety of the conqueror. Of course, all the arguments urged on the ground of the slaves being kidnapped and carried away from a state of freedom, are fallacious.

Mr. OLIN.--I would ask gentlemen if they would not as soon be willing to be brought to the halter as to be made slaves for life? If they would, and I trust they would, man-stealing is a crime as bad as murder, and ought to be punished as heavy. I was at first against the punishment of death; but I own that gentlemen have convinced me by their arguments, and I am now the other way. I am persuaded that gentlemen will think there is nothing dishonorable in this changing one’s mind.

Mr. EARLY.--I formerly thought that the decision on this question was not a matter of any great importance; but as it seems now to be considered as a prelude to an attack on subsequent parts of the bill, it appears to me now important that the subject be well understood and rightly decided.

What are you told? You are now told that a forfeiture is unnecessary, and that to inflict the punishment of death is the only way to stop this trade. I consider this as an old attack revived in a new form. I hope the House will pardon me for undertaking to assign reasons for the bill as reported.

I should like to know how the fear of death will operate on a man who is bound with his slaves to a country where he knows the punishment will not be enforced. He will be bound to a country where the people see slaves every hour of their lives; where there is no such abhorrence of the crime of importing them, and where no man dare inform. My word for it, I pledge it to-day, and I wish it may be recollected; no man in the Southern section of the Union will dare inform. It would cost him more than his life is worth. No man would risk it when it led to the punishment of death, when it was not for an offence which nature revolts at. They do not consider it as a crime.

The gentleman (Mr. SMILIE) has said that, in the Southern States, slavery is felt and acknowledged to be a great evil, and that therefore we will execute a severe law to prevent an increase of this evil. Permit me to tell the gentleman of a small distinction in this case. A large majority of the people in the Southern States do not consider slavery as a crime. They do not believe it immoral to hold human flesh in bondage. Many deprecate slavery as an evil; as a political evil; but not as a crime. Reflecting men apprehend, at some future day, evils, incalculable evils, from it; but it is a fact that few, very few, consider it as a crime.

It is best to be candid on this subject. If they considered the holding of men in slavery as a crime, they would necessarily accuse themselves, a thing which human nature revolts at. I will tell the truth. A large majority of people in the Southern States do not consider slavery as even an evil. Let the gentleman go and travel in that quarter of the Union; let him go from neighborhood to neighborhood, and he will find that this is the fact.

Mr. HOLLAND.--In the Southern States slavery is generally considered as a political evil, and in that point of view nearly all are disposed to stop the trade for the future. But have capital punishments been usually inflicted on offences merely political? I believe not. Fine and imprisonment are the common punishments in such cases. The people of the South do not generally consider slavery as a moral offence. The importer might say to the informer that he had done no worse, nor even so bad as he. It is true that I have these slaves from Africa; but I have transported them from one master to another. I am not guilty of holding human beings in bondage. But you are. You have hundreds on your plantations in this miserable condition. By your purchases you tempt traders to increase the evil. You and your ancestors have introduced this calamity into the country, and you are continuing, you are augmenting it. The importer might hold the same language to the jury and the judge who try him. He might tell them that they were even more guilty than he. Under such circumstances the law inflicting death would not be executed. But if you punish by fine and imprisonment only, you will find the people of the South willing and ready to execute the law.

Mr. DWIGHT.--We are all happily agreed in the great object of the bill--the prevention of the importation of slaves into the United States. Unfortunately, we are not so well agreed in the means to effect this object. It is not, however, at all strange that men should differ about the best mode to accomplish so important a purpose; and especially men in the circumstances in which we are placed. Those of us who come from the Northern and Eastern States, where slavery exists not at all, or but in a slight degree, would naturally view this subject in a very different light from gentlemen who represent the Southern States, where slavery always has existed, and that to a great extent. As great a degree of unanimity as is possible is of much importance, both for the purpose of effectually preventing this inhuman traffic, and for the honor and reputation of our country.

The gentleman from Georgia (Mr. EARLY) has informed us repeatedly that a law making this a capital offence cannot be executed in the Southern States; that the importation of slaves has so long been familiar to them, that a great majority of the people consider it not as an aggravated crime, and a large portion of them as no crime at all; that if we make such an offence capital; if we make the consequence of importing a cargo of slaves to be the loss of life, no man will ever be prosecuted for it, because no man will dare inform. All the gentlemen, sir, from the Southern States, who have spoken on this subject, have told us that they earnestly wish effectually to prevent the slave trade in future. I am disposed to credit them fully. Indeed, I cannot conceive that they should not sincerely and fervently wish to prevent a traffic, which, if persisted in, must in all human probability, first or last, bring upon them and their families the most tremendous calamities. If, then, they view the subject in this light, if they are sincere in making these declarations, there is not only no danger that the law will not be executed, but they will unite to a man to execute the law; the whole community will inform; a regard to their own lives, and the lives of their posterity, will drive them to it. And if, sir, in the rigid execution of this statute, its penalties fall upon men from the Eastern States, who are profligate enough to engage in this inhuman trade, I most heartily concur with my colleague in saying, let the law have its full force, let it fall with all its force upon the offender; let him die.

The question being taken by yeas and nays, on striking out so much of the first section as inflicts the punishment of death on owners and masters of vessels employed in the slave trade, it was carried--yeas 63, nays 53, as follows:

YEAS.--Willis Alston, jun., John Archer, Joseph Barker, Burwell Bassett, Silas Betton, John Boyle, William A. Burwell, William Butler, George W. Campbell, Martin Chittenden, John Claiborne, Joseph Clay, George Clinton, jun., John Clopton, Orchard Cook, Ezra Darby, John Dawson, William Dickson, Peter Early, James Elliot, Caleb Ellis, Ebenezer Elmer, James Fisk, Isaiah L. Green, William Helms, James Holland, David Holmes, John G. Jackson, Walter Jones, Thomas Kenan, Nehemiah Knight, Edward Lloyd, Patrick Magruder, Robert Marion, William McCreery, David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Gurdon S. Mumford, Thomas Newton, jun., John Randolph, John Rhea of Tennessee, Jacob Richards, Peter Sailly, Thomas Sanford, Martin G. Schuneman, Dennis Smelt, John Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, Samuel Taggart, Samuel Tenney, Uri Tracy, Abram Trigg, Daniel C. Verplanck, Robert Whitehill, Eliphalet Wickes, Nathan Williams, Joseph Winston, and Thomas Wynns.

NAYS.--Evan Alexander, Isaac Anderson, David Bard, George M. Bedinger, Barnabas Bidwell, John Blake, jun., Thomas Blount, James M. Broom, Robert Brown, Levi Casey, John Chandler, Matthew Clay, Frederick Conrad, Leonard Covington, Richard Cutts, Samuel W. Dana, John Davenport, junior, Theodore Dwight, Elias Earle, William Ely, John W. Eppes, William Findlay, John Fowler, Edwin Gray, Andrew Gregg, Silas Halsey, Seth Hastings, David Hough, John Lambert, Duncan McFarland, Josiah Masters, John Morrow, Jonathan O. Mosely, Jeremiah Nelson, Gideon Olin, John Porter, John Pugh, John Rea of Pennsylvania, John Russell, Thomas Sammons, Ebenezer Seaver, James Sloan, John Smilie, Benjamin Tallmadge, David Thomas, Thomas W. Thompson, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, John Whitehill, David R. Williams, Marmaduke Williams, and Alexander Wilson.

The question on inserting, in lieu of what was stricken out, a clause prescribing imprisonment for not more than ten, nor less than five years, was carried without a division.

The amendments to the second and third sections were read and agreed to, when, after several unsuccessful attempts to adjourn, the further consideration of the subject was postponed till Friday--ayes 71--to which day the House adjourned.

MONDAY, January 5, 1807.

Another member, to wit, MATTHEW WALTON, from Kentucky, appeared, and took his seat in the House.

WEDNESDAY, January 7.

Salt Duty.

Mr. J. RANDOLPH, from the Committee of Ways and Means, to whom was referred, on the third ultimo, so much of the President’s Message as relates “to a suppression of the duties on salt, to a continuation of the Mediterranean fund, and to the state of our revenues,” presented a bill repealing the acts laying duties on salt, and continuing in force, for a further time, the first section of the act, entitled “An act further to protect the commerce and seamen of the United States against the Barbary Powers;” which was read twice, and committed to a Committee of the Whole on Friday next.

FRIDAY, January 9.

Another member, to wit, MATTHEW LYON, from Kentucky, appeared, and took his seat in the House.

MONDAY, January 12.

Duties on Salt.

Mr. J. RANDOLPH moved that the House resolve itself into a Committee of the Whole on the bill for “repealing the acts laying duties on salt, and continuing in force the first section of an act, entitled an act further to protect the commerce and seamen of the United States against the Barbary Powers.”[45]

TUESDAY, January 20.

Suspension of the Anti-slavery of the Ordinance of ’87 in Indiana.

The SPEAKER laid before the House a letter from William Henry Harrison, Governor of the Indiana Territory, enclosing certain resolutions passed by the Legislative Council and House of Representatives of the said Territory, relative to a suspension, for a certain period, of the sixth article of compact between the United States and the Territories and States north-west of the river Ohio, made on the thirteenth of July, one thousand seven hundred and eighty-seven; which were read, as follows:

Resolved, unanimously, by the Legislative Council and House of Representatives of the Indiana Territory, That a suspension of the sixth article of compact between the United States and the Territories and States north-west of the river Ohio, passed the 13th day of July, 1787, for the term of ten years, would be highly advantageous to the said Territory, and meet the approbation of at least nine-tenths of the good citizens of the same.

Resolved, unanimously, That the abstract question of liberty and slavery is not considered as involved in a suspension of the said article, inasmuch as the number of slaves in the United States would not be augmented by the measure.

Resolved, unanimously, That the suspension of the said article would be equally advantageous to the Territory, to the States from whence the negroes would be brought, and to the negroes themselves.

To the Territory, because of its situation with regard to the other States; it must be settled by emigrants from those in which slavery is tolerated, or for many years remain in its present situation, its citizens deprived of the greater part of their political rights, and, indeed, of all those which distinguish the American from the citizens and subjects of other governments.

The States which are overburdened with negroes would be benefited by their citizens having an opportunity of disposing of the negroes which they cannot comfortably support, or of removing with them to a country abounding with all the necessaries of life; and the negro himself would exchange a scanty pittance of the coarsest food for a plentiful and nourishing diet, and a situation which admits not the most distant prospect of emancipation, for one which presents no considerable obstacle to his wishes.

Resolved, unanimously, That the citizens of this part of the former North-western Territory consider themselves as having claims upon the indulgence of Congress in regard to a suspension of the said article, because at the time of the adoption of the ordinance of 1787 slavery was tolerated, and slaves generally possessed by the citizens then inhabiting the country, amounting to at least one-half the present population of Indiana, and because the said ordinance was passed in Congress when the said citizens were not represented in that body, without their being consulted, and without their knowledge and approbation.

Resolved, unanimously, That, from the situation, soil, climate, and productions of the Territory, it is not believed that the number of slaves would ever bear such proportion to the white population, as to endanger the internal peace and prosperity of the country.

Resolved, unanimously, That copies of these resolutions be delivered to the Governor of this Territory, to be by him forwarded to the President of the Senate and to the Speaker of the House of Representatives of the United States, with a request that they will lay the same before the Senate and House of Representatives, over which they respectively preside.

Resolved, unanimously, That a copy of these resolutions be delivered to the delegate to Congress from this Territory, and that he be, and he hereby is, instructed to use his best endeavors to obtain a suspension of the said article.

The resolutions were referred to Mr. PARKE, Mr. MASTERS, Mr. RHEA of Tennessee, Mr. SANFORD, Mr. ALSTON, Mr. JEREMIAH MORROW, and Mr. TRIGG, to examine and report their opinion thereupon to the House.

MONDAY, January 26.

Another new member, to wit, WILLIAM W. BIBB, from Georgia, returned to serve as a member for the said State, in the place of Thomas Spalding, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the House.

Suspension of the Habeas Corpus.

A message was received from the Senate, by Mr. SAMUEL SMITH, as follows:

Mr. SPEAKER: I am directed by the Senate of the United States to deliver to this House a confidential message, in writing.

The House being cleared of all persons except the members and the Clerk, Mr. SMITH delivered to the SPEAKER the following communication in writing:

Gentlemen of the House of Representatives:

The Senate have passed a bill suspending for three months the privilege of the writ of habeas corpus, in certain cases, which they think expedient to communicate to you in confidence, and to request your concurrence therein, as speedily as the emergency of the case shall in your judgment require.

Mr. SMITH, also, delivered in the bill referred to in the said communication, and then withdrew.

The bill was read as follows:

A Bill suspending the writ of Habeas Corpus for three months, in certain cases.

Be it enacted, by the Senate and House of Representatives of the United States of America, in Congress assembled, That in all cases, where any person or persons, charged on oath with treason, misprision of treason, or other high crime or misdemeanor, endangering the peace, safety, or neutrality of the United States, have been or shall be arrested or imprisoned, by virtue of any warrant or authority of the President of the United States, or from the Chief Executive Magistrate of any State or Territorial Government, or from any person acting under the direction or authority of the President of the United States, the privilege of the writ of habeas corpus shall be, and the same hereby is suspended, for and during the term of three months from and after the passage of this act, and no longer.

Mr. P. R. THOMPSON moved that the message and the bill received from the Senate ought not to be kept secret, and that the doors be opened.

Mr. BURWELL and Mr. SMILIE spoke in support of the motion.

Mr. EARLY thought that a previous order should be taken to remove the injunction of secrecy. To open the doors and admit strangers to hear the debate, and yet continue the injunction of secrecy on members, would present a singular spectacle.

Mr. J. RANDOLPH said they could not be bound to secrecy except by their own vote. If there was any charm by which they could be bound, except their own act, he wished it might be dissolved.

Mr. G. W. CAMPBELL hoped the usual course would be pursued; read the bill a second time, and then refer it to a Committee of the Whole.

Mr. ALSTON thought the question, whether the bill should pass to a second reading, first in order.

The SPEAKER decided that the motion to open the doors was in order, and the question on that motion must first be taken.

The yeas and nays being demanded by one-fifth of the members present, they were ordered to be taken.

The question then was put on the motion, That the message and bill received from the Senate ought not to be kept secret, and that the doors be now opened; and resolved in the affirmative--yeas 123, nays 3.

Mr. EPPES moved that the bill be rejected.[46] This motion was afterwards withdrawn to give place to another motion, but with the idea of renewing it again.

Mr. BURWELL said he was unacquainted with the particular reasons which had induced the Senate to pass this bill. None had been assigned when the bill was communicated, and no additional documents presented. He could, therefore, only be governed by that information which the House had received; and he believed that it would justify the motion before the House. The President, in his Message of the 22d, says, “on the whole, the fugitives from Ohio and their associates from Cumberland, or other places in that quarter, cannot threaten serious danger to the city of New Orleans.” If that be the case, upon what ground shall we suspend the writ of habeas corpus? Can any person imagine the United States are in danger, after this declaration of the President, who unquestionably possesses more correct information than any other person can be supposed to have. In another part of the Message, we are informed--

“That the persons arrested at New Orleans have been embarked for some of the Atlantic ports, probably on the consideration that an impartial trial could not be expected during the present agitations of New Orleans, and that that city was not as yet a safe place of confinement. As soon as these persons shall arrive, they will be delivered to the custody of the law, and left to such course of trial, both as to place and process, as its functionaries may direct; the presence of the highest judicial authorities to be assembled at this place within a few days, the means of pursuing a sounder course of proceedings here than elsewhere, and the Executive means, should the judges have occasion to use them, render it equally desirable, for the criminals as for the public, that being already removed from the place where they were apprehended, the first regular arrest should take place here, and the course of proceedings receive here its proper direction.”

The President evidently holds out the idea, that the correct and proper mode of proceeding can be had under the existing laws of the United States. These persons may be transferred from the military to the civil authority, and be proceeded against according to law. Those, therefore, who fear the escape of the traitors already apprehended, and would, by this measure, obviate the difficulty, must perceive that consequence would not ensue. Mr. B. said he should consider the suspension of the habeas corpus as holding out an idea of danger and alarm, which was highly improper, inasmuch as it did not exist. It is true, this conspiracy was once formidable, extensive, and threatening; but it has been dissipated by the vigilance of Government. He would ask gentlemen, if they seriously believed the danger sufficiently great to justify the suspension of this most important right of the citizen, to proclaim the country in peril, and to adopt a measure so pregnant with mischief, by which the innocent and guilty will be involved in one common destruction? He said this was not the first instance of the kind since the formation of the Federal Government; there had been already two insurrections in the United States, both of which had defied the authority of Congress, and menaced the Union with dissolution. Notwithstanding one of them justified the calling out of fifteen thousand men, and the expenditure of one million of dollars, he had not heard of a proposition to suspend the writ of habeas corpus. What, then, will be said of us, if now, when the danger is over, firm in the attachment of the people to the Union, with ample resources to encounter any difficulties which may occur, we resort to a measure so harsh in its nature, oppressive in its operation, and ruinous as a precedent? While, in former times, it was thought unsafe to suspend this most important and valuable part of the constitution, he would ask, whether the necessity at the present time could be considered greater? With regard to those persons who may be implicated in the conspiracy, if the writ of habeas corpus be not suspended, what will be the consequence? When apprehended, they will be brought before a court of justice, who will decide whether there is any evidence that will justify their commitment for further prosecution. From the communication of the Executive, it appeared there was sufficient evidence to authorize their commitment. Several months would elapse before their final trial, which would give time to collect evidence, and if this shall be sufficient, they would not fail to receive the punishment merited by their crimes and inflicted by the laws of their country.

Mr. B. said he could conceive no injury that would result on this score; and, indeed, if some persons should elude justice, it would not endanger society so materially as to come within the terms of the constitution. He observed, it appeared to him the commencement of an insurrection was the only time when the writ of habeas corpus ought to be suspended; when the seizure of the ringleaders, by dismaying the inferior agents, would enable the Government, without the effusion of blood, to suppress it. But it was manifest that, at this moment, every thing intended by the conspirators was effected, or they were in the hands of the civil authority; there was, therefore, no good reason to take this precautionary step with that view; while on the one hand, it would unavoidably produce unnecessary alarm, and much inconvenience to the citizens of the United States. Nothing but the most imperious necessity would excuse us in confining to the Executive, or any person under him, the power of seizing and confining a citizen, upon bare suspicion, for three months, without responsibility, for the abuse of such unlimited discretion. Mr. B. said he could judge from what he had already seen, that men, who are perfectly innocent, would be doomed to feel the severity of confinement, and undergo the infamy of the dungeon. What reparation can be made to those who shall thus suffer? The people of the United States would have just reason to reproach their representatives with wantonly sacrificing their dearest interests, when, from the facts presented to this House, it seems the country was perfectly safe, and the conspiracy nearly annihilated. Under these circumstances, there can be no apology for suspending the privilege of the writ of habeas corpus, and violating the constitution, which declares “the writ of habeas corpus shall not be suspended, unless when, in cases of invasion or rebellion, the public safety may require it.”

Mr. B. said he hoped he had shown that, admitting the two cases specified in the constitution existed, they were not accompanied with such symptoms of calamity as rendered the passage of the bill expedient.

What, in another point of light, would be the effect of passing such a law? Would it not establish a dangerous precedent? A corrupt and vicious Administration, under the sanction and example of this law, might harass and destroy the best men of the country. It would only be necessary to excite artificial commotions, circulate exaggerated rumors of danger, and then follows the repetition of this law, by which every obnoxious person, however honest, is surrendered to the vindictive resentment of the Government. It will not be a sufficient answer, that this power will not be abused by the President of the United States. He, Mr. B. believed, would not abuse it, but it would be impossible to restrain all those who are under him. Besides, he would not consent to advocate a principle bad, in itself, because it will not, probably, be abused. For these reasons, Mr. B. said, he should vote to reject the bill.

Mr. ELLIOT said that he regretted the motion to reject the bill had been made, because, considering the subject of very great importance, he thought it most proper that it should take the usual course of business, that the bill should be read a second time, and referred to a Committee of the Whole, for the purposes of deliberation and discussion.

Called upon, however, said Mr. E., to answer to the question, Shall the bill be rejected? I must answer that question in the affirmative, as I should deem it my duty to advocate its rejection in any form which it might assume, and in any stage of its progress; and I deem it equally my duty, on the present occasion, to express my sentiments upon the subject. It is, indeed, difficult for me, consistently with the sincere and high respect which I entertain for the source from whence this measure originated, to express, in decorous terms, the hostility which I feel to the proposition. I am therefore disposed to consider it as an original proposition here; as a motion in this body to suspend, for a limited time, the privileges attached to the writ of habeas corpus. And, in this point of view, I am prepared to say that it is the most extraordinary proposition that has ever been presented for our consideration and adoption. Sir, what is the language of our constitution upon this subject? “The privilege of the writ of habeas corpus shall not be suspended, except when, in cases of invasion or rebellion, the public safety shall require it.” Have we a right to suspend it in any and every case of invasion and rebellion? So far from it, that we are under a constitutional interdiction to act, unless the existing invasion or rebellion, in our sober judgment, threatens the first principles of the national compact, and the constitution itself. In other words, we can only act in this case with a view to national self-preservation. We can suspend the writ of habeas corpus only in a case of extreme emergency; that alone is salus populi which will justify this lex suprema. And is this a crisis of such awful moment? Is it necessary, at this time, to constitute a dictatorship, to save the people from themselves, and to take care that the Republic shall receive no detriment? What is the proposition? To create a single Dictator, as in ancient Rome, in whom all power shall be vested for a time? No; to create one great Dictator, and a multitude, an army of subaltern and petty despots; to invest, not only the President of the United States, but the Governors of States and Territories, and, indeed, all persons deriving civil or military authority from the supreme Executive, with unlimited and irresponsible power over the personal liberty of your citizens. Is this one of those great crises that require a suspension, a temporary prostration of the constitution itself? Does the stately superstructure of our Republic thus tremble to its centre, and totter towards its fall? Common sense must give a negative answer to these questions. What are the facts? Is it, indeed, a case of rebellion? We are officially informed that rebellion has reared its hydra front in the peaceful valleys of the West. But we are also informed by the Executive that treason has no prospect of success; that “the fugitives from the Ohio, and their associates from Cumberland, cannot threaten serious danger even to the city of New Orleans.” Not a single city, still less a Territory or a State, is considered in danger; and the Executive, not only possesses all the information which has been communicated to us, but much more, for we are informed that the communication has been made under the reservation contained in the resolution requesting it, and of course all the facts in the knowledge of the Executive, which are decided to be improper for disclosure at this time, have been kept back. And the Executive, possessing all this information, assures us that the public safety is not endangered. Can we, under these circumstances, consent to the investiture of dictatorial powers in that department of the Government which thus assures us that all is safe? It would be contrary to the spirit of the constitution.

But we shall be told that the constitution has contemplated cases of this kind, and, in reference to them, invested us with unlimited discretion. When any gentleman shall advance such a position, we, who advocate the rejection of the bill, will meet him upon that ground, and put the point at issue. We contend that the framers of the constitution never contemplated the exercise of such a power, under circumstances like the present; and that the constitution itself, instead of authorizing, has prohibited such discretion, unless in an extreme case. And can any member lay his hand upon his heart and say, that the present is a case of that description? He who cannot do this must, with us, consider the proposed measure as unconstitutional.

Let us pay a little attention to the nature and character of the writ of habeas corpus. It has its origin in Great Britain, and is there considered in two great points of view, as it respects the monarch, and as it respects the subject. As it respects the monarch, it is one of the jura prerogativa, a writ of prerogative; but it is not considered as calculated to increase the power of the king, or the splendor of the throne; in its origin and true character it is viewed as a prerogative, exercised by the king, or those authorities to whom his judicial powers are supposed to be delegated, only for the purpose of securing the constitutional rights of the subject, and restraining the invasion of those rights. As it respects the subject, it is a writ of right, and is emphatically called, by English writers, a writ of liberty.

By the provisions of the famous statute of Charles II., which has even been called a second magna charta, its privileges are guarantied to all British subjects at all times. An eminent English author, and the most popular writer upon subjects of legal science, considers its suspension as the suspension of liberty itself; declares that the measure ought never to be resorted to but in cases of extreme emergency; and says that the nation then parts with its freedom for a short and limited time, only to resume and secure it for ever. Hence, he compares the suspension of the habeas corpus act in Great Britain to the dictatorship of the Roman Republic.

But objectionable as the bill upon the table is in point of principle, it is, if possible, still more objectionable in point of detail. It invests with the power of violating the first principles of civil and political liberty, not only the supreme Executive, and the Executives of individual States and Territories, but all civil and military officers who may derive any authority whatever from the Chief Magistrate. And it extends the operation of the suspension of the privileges of the habeas corpus, not only to persons guilty or suspected of treason, or misprision of treason, but, to those who may be accused of any other crime or misdemeanor, tending to endanger the “peace, safety, or neutrality,” of the United States! What a vast and almost illimitable field of power is here opened, in which Executive discretion may wander at large and uncontrolled! A vast and dangerous scene of power, indeed! It gives the power of dispensing with the ordinary operation of the laws to a host of those little great men, who are attached to every Government under heaven. I wish not to reflect upon any of those subordinate officers who may be employed by the Government of my country.

But no one will doubt that, in times of alarm and danger, many men will be clothed with the functions of office, who are incompetent to the discreet exercise of such boundless discretion. I can never wish to see such persons invested with the means of aiming at the heads of their private enemies, or other innocent and unoffending citizens, the thunderbolts of public indignation, or scorching them with the lightning of public suspicion. Says the poet:

“Could great men thunder, Jove would ne’er be quiet, For every petty pelting officer Would use his heaven for thunder.”

Let us again ask for evidence of the necessity of this measure? Certainly none can be produced, for we are informed, from the first authority, that if the present be not a time of profound peace, it is far from being a period of public danger. The leader of this petty rebellion has been called the modern Catiline. Undoubtedly, he possesses many of the qualities which a celebrated ancient historian ascribes to the Catiline of Rome: his genius, his address, his activity, his profligacy; but he is destitute of his means and resources. He wants that power of doing mischief which the Roman conspirator possessed. So far is he from being able to make war upon his country, that he cannot take possession of a single city. He is rapidly hastening to the same fate, although he may not meet it in the same manner. Already is he “damn’d to everlasting fame,” or rather, damned to everlasting infamy. Already is he a fugitive. Already a price is set upon his head. In the papers of this morning, we see that the Governor of Orleans has offered a reward for his apprehension. We cannot but detest the traitor, but we can have no fears of the consequences of the treason.

Mr. E. concluded, by expressing a hope that the bill would meet a decided vote of rejection.

Mr. EPPES.--When I feel a decided hostility to a principle, it is not material to me in what form I meet it. Decidedly opposed to the principle of this bill, I shall vote against it in all its stages, and cannot but hope that the motion of my colleague to reject it will prevail. By this bill, we are called upon to exercise one of the most important powers vested in Congress by the Constitution of the United States. A power which suspends the personal rights of your citizens, which places their liberty wholly under the will, not of the Executive Magistrate only, but of his inferior officers. Of the importance of this power, of the caution which ought to be employed in its exercise, the words of the constitution afford irresistible evidence. The words of the constitution are: “The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” The wording of this clause of the constitution deserves peculiar attention. It is not in every case of invasion, nor in every case of rebellion, that the exercise of this power by Congress can be justified under the words of the constitution. The words of the constitution confine the exercise of this power exclusively to cases of rebellion or invasion, where the public safety requires it. In carrying into effect most of the important powers of Congress, something is left for the exercise of its discretion. We raise armies when, in our opinion, armies are necessary. We may call forth the militia to suppress insurrection or repel invasion, when we consider this measure necessary. But we can only suspend the privilege of the habeas corpus, “when, in cases of rebellion or invasion, the public safety requires it.” Well, indeed, may this caution have been used as to the exercise of this important power. It is in a free country the most tremendous power which can be placed in the hands of a legislative body. It suspends, at once, the chartered rights of the community, and places even those who pass the act under military despotism. The constitution, however, having vested this power in Congress, and a branch of the Legislature having thought its exercise necessary, it remains for us to inquire whether the present situation of our country authorizes, on our part, a resort to this extraordinary measure.

The inquiry is confined within very narrow limits. The power can only be exercised under the constitution, “when, in cases of rebellion or invasion, the public safety may require it.” Our country is not invaded. We have only, therefore, to inquire whether there exists in this country a rebellion, and whether the public safety requires a suspension of the habeas corpus. Of the existence of the rebellion or combination against the authority of the United States there can be no doubt, as we have on our table a detailed account of its origin and progress. I shall confine my observations solely to the latter part; whether the public safety requires a suspension of the habeas corpus for its suppression. In the communication now on our table, from the Executive, we have been informed that the militia of Ohio, Kentucky, and Tennessee, and of the Mississippi and Orleans Territories, have been ordered out. That General Wilkinson was at Orleans, on the 10th of December, with his troops from the Sabine, which from other information we know to consist of one thousand effective men. These are resources of the nation now in active operation. What is the force of the conspirators? By the same documents, we are informed that “some boats, accounts vary from five to double or treble that number, and persons, differently estimated from one to three hundred, had passed the falls of the Ohio to rendezvous at the mouth of Cumberland river, with others expected down that river.” From the same document it appears that the force which comes down Cumberland river amounts to two boats, in one of which is Aaron Burr. From this statement, it appears that the largest calculation as to the actual force of the conspirators, is three hundred. But when we know the propensity of human nature to magnify accounts of this kind, we may fairly infer that the whole force does not exceed one hundred and fifty men. To oppose which, we have one thousand regular troops, and the militia of Ohio, Kentucky, and Tennessee, and of the Mississippi and Orleans Territories. Is there a man present who believes, on this statement, that the public safety requires a suspension of the habeas corpus? This Government has now been in operation thirty years; during this whole period, our political charter, whatever it may have sustained, has never been suspended. Never, under this Government, has personal liberty been held at the will of a single individual. Shall we, in the full tide of prosperity, possessed of the confidence of the nation, with a revenue of fifteen millions of dollars, and six hundred thousand freemen, able and ready to bear arms in defence of their country, believe its safety endangered by a collection of men which the militia of any one county in our country would be amply sufficient to subdue? Shall we, sir, suspend the chartered rights of the community for the suppression of a few desperadoes; of a small banditti already surrounded by your troops; pressed from above by your militia; met below by your regulars, and without a chance of escape, but by abandoning their boats, and seeking safety in the woods? I consider the means at present in operation amply sufficient for the suppression of this combination. If additional means were necessary, I should be willing to vote as many additional bayonets as shall be necessary for every traitor. I cannot, however, bring myself to believe that this country is placed in such a dreadful situation as to authorize me to suspend the personal rights of the citizen, and to give him, in lieu of a free constitution, the Executive will for his charter. I consider the provision in the constitution for suspending the habeas corpus as designed only for occasions of great national danger. Like the power of creating a Dictator in ancient Rome, it prostrates the rights of your citizens and endangers public liberty. Like that it may, on some very extraordinary occasions, prove salutary, but like that, it ought never to be resorted to but in cases of absolute necessity; or, to use the emphatic language of the constitution, “when the public safety requires it.” Believing that the public safety is not endangered, and that the discussion of this question is calculated to alarm the public mind at a time when no real danger exists, I shall vote for the rejection of the bill in its present stage.

Mr. VARNUM said if he was of opinion with the gentlemen from Vermont and Virginia, he should vote for the rejection of this bill; but he entertained a different opinion, and, unless he heard something to change it, he should vote differently from them. He did not believe the constitution restricted the power of the Government to suspend the privilege of the habeas corpus in cases where the country was shaken to its centre. There were no expressions in it to justify this inference. Its terms are: “The privilege of the writ of habeas corpus shall not be suspended, except when, in cases of invasion or rebellion, the public safety shall require it.” Will gentlemen deny that there exists in the United States at present a rebellion? I presume not, said Mr. V., it is too notorious to admit of doubt. Will they deny that the conspiracy has been formed with deliberation, and has existed for a long time? Is it not evident that it has become very extensive? If, then, this is the case, and the head of the conspiracy has said that he is aided by a foreign power; if this is true, are we justified in considering the country in a perfect state of safety, until it is brought to a close? I conceive not. I consider the country, in a degree, in a state of insecurity; and if so, the power is vested in the Congress of the United States, under the constitution, to suspend the writ of habeas corpus. I am also apprehensive that we shall not be able to trace the conspiracy to its source without such a suspension. We have had an instance in which the head of the conspiracy has been brought before a court of justice, and where nothing has been brought against him. It is not my wish to insinuate that any court or public functionary is contemplated by this conspiracy; yet it is possible that this may be the case, and the very existence of the country may depend on tracing it to its source. I am not disposed to advocate sanguinary punishments, but I think they ought to be exemplary in regard to the chiefs of the conspiracy; for which purpose we ought to adopt those measures which will lead to a full discovery of those concerned in it. I am sensible that the Government of the United States has not hitherto resorted to this measure; but I know a particular State of the Union who did consider the measure necessary, in the case of an insurrection which occurred within her limits; and I think it very doubtful whether that insurrection would have so happily closed, if it had not been for her suspension of the writ of habeas corpus. Have we had any insurrection or rebellion in the United States like this? We have had one insurrection in Massachusetts, but whence did it arise? Not from a design to subvert the Government, but from the burden of taxes; taxes which, perhaps, exceeded those laid in any country since the formation of society. I do not mean, by these observations, by any means to justify that insurrection, and, I believe, from the circumstances with which I am acquainted, that the insurrection which took place in Pennsylvania did not go to the subversion of the Government. But let us look at this conspiracy. While the nation, from one extreme to the other, enjoys a degree of prosperity and happiness unparalleled in any other nation, and not a single individual within our limits has any reason to complain of oppression, an insurrection is fomented, subversive of the Government and destructive of the rights of the people. It appears to me that this insurrection is the most aggravating of all insurrections which history gives us an account of. There is not the least oppression or the least pressure of circumstances, to induce any individual to rise up against the Government of this country; and it consequently betrays the greatest turpitude of mind in those who either lead or unite in it. For these reasons, I think it ought to be traced to its source, and I think it very doubtful whether this can be effected without, in the first instance, suspending the habeas corpus. Will gentlemen say that any innocent man will have a finger laid upon him, should this law pass? No; there is no probability of it; it is scarcely possible. But, even if it be possible, if the public good requires the suspension of the privilege, every man attached to the Government and to the liberty he enjoys, will be surely willing to submit to this inconvenience for a time, in order to secure the public happiness. The suspension only applies to particular crimes, the liberties of the people will not therefore be touched. I do think a great responsibility will rest on this branch of the Legislature, in case they refuse to pass this act. Suppose the head of this conspiracy shall be taken in a district of country where no evidence exists of the crime charged to him, and he shall consequently be set at liberty by the tribunals of justice; where will the responsibility rest, but upon this branch of the Legislature? It is too great for me, as an individual member, to bear. I shall, therefore, vote for this bill, under the impression that it will not have the injurious effects that some gentlemen seem to apprehend; and that it will only more effectually consign the guilty into the hands of justice.

Mr. R. NELSON.--As the motion to reject the bill meets my most hearty approbation, and as I consider it involving a great national question, I cannot reconcile it to my duty to give a silent vote on it. I shall, however, in order to avoid an unnecessary consumption of the time of the House, offer my remarks in as concise a compass as possible. I shall first consider the nature of the writ of habeas corpus; afterwards examine its effects, not only on the individual, but on the community at large; taking into view the mode of proceeding under it, to show, as I conceive, that no danger can ensue, on the refusal to pass this bill.

What is a writ of habeas corpus? It is a writ directing a certain person in custody to be brought before a tribunal of justice, to inquire into the legality of his confinement. If the judge is of opinion that the confinement is illegal, the person will of course be discharged; if, on the contrary, from the evidence, he shall be of opinion that there is sufficient grounds to suspect that he is guilty of offence, he will not be discharged. Now, to me, it appears that this is a proper and necessary power to be vested in our judges, and that a suspension of the writ of habeas corpus is, in all cases, improper. If a man is taken up, and is denied an examination before a judge or a court, he may, although innocent in this case, continue to suffer confinement. This, in my opinion, is dangerous to the liberty of the citizen. He may be taken up on vague suspicion, and may not have his case examined for months, or even for years. Would not this bear hard upon the rights of the citizen?

Let us turn over a leaf, and see how the Government stands. If the person accused is legally committed, or if it shall be proved that he has committed any offence, the judge will say that he shall not be released. If he has committed an offence, there can be no grounds for this suspicion, because, without such suspension, he will not be discharged, because it does not follow that, inasmuch as a man has a right to demand that he be brought before a judge by a writ of habeas corpus, he shall therefore be discharged. He is only bound to examine him, and if he finds there is strong reason to believe he has committed a crime, he may remand him to confinement.

This is a writ of right, which ought to exist under all governments on earth. What right? The right of being examined by the tribunals of his country, to determine whether there is any ground for the deprivation of his liberty. Is this a right which ought to be suspended merely to gratify the apprehensions of gentlemen? I think not. The framers of the constitution have said: “the privilege of the writ of habeas corpus shall not be suspended, except when, in cases of invasion or rebellion, the public safety shall require it.” Well, but, says the gentleman from Massachusetts, can any one deny that this is a rebellion? It may perhaps be, but I think it does not deserve the name of a rebellion; it is a little, petty, trifling, contemptible thing, led on by a desperate man, at the head of a few desperate followers: a thing which might have been dangerous, if the virtue of the people had not arrested and destroyed it. But admit that it is a rebellion; will every rebellion justify a suspension of the writ of habeas corpus? The constitution says: “the privilege of the writ of habeas corpus shall not be suspended, except when, in cases of invasion or rebellion, the public safety shall require it.” Does, then, the public safety require this suspension? Does the constitution justify it? And, under present circumstances, confining a man in prison without a cause. There is no danger, the enemy is not at our door; there is no invasion; and yet we are called upon to suspend the writ of habeas corpus. This precedent, let me tell gentlemen, may be a ruinous, may be a most damnable precedent--a precedent which, hereafter, may be most flagrantly abused. The Executive may wish to make use of more energetic measures than the established laws of the land enable him to do; he will resort to this as a precedent, and this important privilege will be suspended at the smallest appearance of danger. The effect will be, that whenever a man is at the head of our affairs, who wishes to oppress or wreak his vengeance on those who are opposed to him, he will fly to this as a precedent; it will truly be a precedent fraught with the greatest danger; a precedent which ought not to be set, except in a case of the greatest necessity; indeed, I can hardly contemplate a case in which, in my opinion, it can be necessary.

In my opinion, this is a measure which ought never to be proposed, unless when the country is so corrupt that we cannot even trust the judges themselves. This, I consider the cause of the frequent suspension of this privilege in England. Whenever the whole mass of society becomes contaminated, and the officers of the judicial court are so far corrupted as to countenance rebellion, and release rebels from their confinement, it may be then time to say, they shall no longer remain in your hands; we will take them from you. But I apprehend there is no such danger here, and I repeat it, we are at once creating one of the most dangerous precedents, and passing one of the most unjust acts that was ever proposed.

Mr. SLOAN.--At the same time that I express my purpose to vote on the same side with the gentleman from Maryland, I shall take the liberty of assigning very different reasons for my vote from those offered by him. The gentleman from Virginia has mentioned two preceding insurrections, which he considers of much greater magnitude than this. I am of a different opinion. Compared to this, I consider them as only a drop to the bucket. For a moment, let me ask the attention of gentlemen to those insurrections, or as I think they might, with more correctness, be termed, oppositions to Government. In consequence of certain citizens thinking themselves aggrieved by certain acts, in which they have been, in some measure, justified by their subsequent repeal, a handful of people raised in opposition to their execution. What analogy do those oppositions bear to this rebellion? I consider the late or present conspiracy to be of greater magnitude than any we know of in history. Under what authority has it been created? Under that of a man of great abilities and experience, who states that he expects encouragement from foreign nations. I do not pretend to say that this is a fact; but what has he done? Has he not drawn resources from every part of the Union? I, therefore, consider it of great magnitude, and it is certainly excited against the best government on earth, under which the people enjoy the greatest happiness. I shall, however, vote against the bill, under the belief that we may confidently rely on the love and affection of the people for their Government, to which we are already probably indebted for its suppression. Had this measure been brought forward a month or six weeks ago, I should have voted for it.

Mr. BIDWELL said, although he was not satisfied of the necessity of passing this bill, he was not prepared to reject it, in its present stage. As it had received the sanction of the Senate, he was disposed to treat it as a subject worthy of discussion and deliberation, by referring it in the usual course, to a Committee of the whole House. Before the passing of any bill of this nature, the House ought to have satisfactory proof that a rebellion in fact existed, (for there was no pretence of an invasion,) and that the public safety required a suspension of the privilege of habeas corpus. By the terms of the constitution, both of these pre-requisites must concur, to authorize the measure. The first inquiry would naturally turn upon the existence of a rebellion. On that point he had no doubt. To constitute a rebellion, in the sense of the constitution, he did not think it necessary that a battle should have been fought, or even a single gun fired. If troops were enlisted, assembled, organized, and armed, for the purpose of effecting a treasonable object, it amounted to actual rebellion. Such was the existing state of things. The public notoriety of the fact was, perhaps, sufficient evidence for the Legislature to act upon, if necessary; but they had also the official statement of the President to that effect. He had, therefore, no doubt of the existence of a rebellion, and that, too, of a more wanton and malignant character than any insurrection which had heretofore been raised against our Government; for it had not been occasioned by any grievances, real or imaginary, but must have originated in motives of personal ambition, or some more unworthy passion.

An existing rebellion, however, even of this aggravated description, was not alone sufficient to justify a suspension of the writ of habeas corpus. To bring it within constitutional justification, it must be required by the public safety. That was a matter of opinion, rather than of fact. He was convinced that the proposed suspension was not requisite for the purpose of suppressing the conspiracy; for by the vigilance and energy of our Executive Government, seconded and supported by the exertions of particular States and Territories, and the army, this deep laid conspiracy was already in a good measure suppressed, and he trusted the means now in operation would complete the suppression. A suspension of the habeas corpus could not be necessary, except for the detection and conviction of the conspirators. A thorough investigation ought undoubtedly to be made. If any persons concerned in the conspiracy were arrested in situations which precluded an immediate production of such evidence as would warrant their confinement, justice would require that they should be detained until the proper evidence could be procured; but in the mean time they might be discharged by virtue of a habeas corpus; for, though he agreed with the gentleman from Maryland, (Mr. NELSON,) in the importance and utility of this writ, he could not subscribe to the doctrine which he understood that gentleman to maintain, that it would entitle a person to a discharge only for causes of irregularity in the arrest. Want of legal evidence to show, by oath or affirmation, probable cause for detention, would be a ground of discharge. In ordinary cases, indeed, the release and escape of a guilty person, for such want of evidence, was esteemed a smaller evil than a denial of the common privilege. If it were so in respect to this conspiracy, there was, in his opinion, no good reason for passing this bill. That was a point which appeared to him worthy of some deliberation.

It had been mentioned in the debate, that in the whole history of our Government, notwithstanding two insurrections, the habeas corpus had, in no instance, been suspended. It was true. But an instance had been cited from one of the States. During the insurrection in Massachusetts there was such a suspension, in pursuance of a constitutional provision; and it was generally acknowledged to have been a necessary and salutary measure. He had never understood that it was abused, or that it was considered by the people of that State, a dangerous example. It was justified by the occasion. But it did not, therefore, follow, that a similar suspension would be justifiable on this occasion. That must depend on the present state and circumstances of the nation. Although a rebellion existed, he was not satisfied that the public safety required so strong and severe a measure. But, as it was an important question, on which the House had not yet taken time to deliberate, he was willing that the bill should go, according to the usual course of proceeding, to a Committee of the Whole; and therefore, he should not give his vote for rejecting it in the present state.

Mr. J. RANDOLPH.--I shall give my vote in a very different manner from the gentleman who has just sat down. I was extremely happy to witness the very prompt and decided opposition this measure received in the House, and from the quarter whence that opposition originated; and I subscribe with great pleasure to the sound constitutional doctrine, which the gentleman from Pennsylvania advanced this morning before our doors were opened. We are now told that to reject this bill at its first reading, will be to depart from the usual course of proceeding in this House, and an attempt is made to enlist the feelings of members so far at least as to permit the bill to progress one step farther, that we may avoid violating that decorum which ought to be observed between the two Houses. I do not, however, consider the subject in this light. I conceive, on the contrary, it is as competent to us to reject the bill on its first as on any other reading. I well recollect that about eight years ago an important bill was smuggled through the House by this fastidious mode of proceeding. Gentlemen were allured from their honest opinions, and finally, by finesse and management, the bill was carried through the House. I understand that this course is pursued by the other branch of the Legislature on bills carried from this House; and I believe it will be found that with regard to the passage of bills between the two Houses, the course of procedure on the part of this House is more liberal than that pursued by the other. For I do not recollect a single instance in which the vote of a single member can stop the passage of a bill in this House received from the other branch of the Legislature. I, therefore, feel no scruples on this score. I think it just as well to say, that we will permit this bill to pass to a second or third reading, as to say that though we are opposed to the principle contained in a resolution which may originate in this House, we nevertheless permit a committee to bring in a bill to carry it into effect, because we may destroy the bill at its last stage. This appears to be a strange course of reasoning. It is like permitting yourselves to be bound in chains that you may be loosed again, or going into prison that you may afterwards come out. Gentlemen talk of the propriety of discussing this subject, but when a subject is so clear that every man has made up his mind upon it, where is the need of discussion? If it is not so clear, will any gentleman say that the discussion now had, in which every member has a right to speak twice, which is once more in my opinion than is necessary, will not be sufficient to develope all the merits and demerits of the bill? Will gentlemen undertake to say, if every member shall give the mature, or as it may be, crude suggestions of his mind, that the subject will not be sufficiently discussed, and lead to the formation of a correct judgment? I believe it will. And therefore, on this ground, a bill may as well be decided in its present stage as before a Committee of the Whole.

Some gentlemen, to whom I have listened with considerable gratification, tell us that, out of respect to the other branch, we ought not at this time to reject the bill. I, however, feel no such respect on this occasion, and shall express none. On the contrary, I am free to declare, that when a measure, tending to impose a burden on the people, or to detract from the privileges of the citizen, comes from that quarter, I shall always view it with jealousy. The inequality of the representation in that branch, the long tenure of office, and the custom with which they are so familiar of conducting their proceedings in conclave, (the House will recollect how long it was after the adoption of the constitution before the public could get admission into their twopenny gallery,) render all their proceedings touching the public burdens, or the liberties of the people, highly suspicious. And to say the truth, I am not at all surprised that they did close their doors on this occasion, that they might not be under the inspection of the public eye, while they were passing the bill on the table. I say so, because I am willing to abide by the good old principle of judging all men by myself; and if I had introduced such a bill, I should have been glad, my name did not appear on the Journals, that the public might not know to whom they were indebted for such a precedent.

I have another objection to the bill, besides that of the quarter from which it originated, or the manner in which it has been presented to the House. It appears to my mind like an oblique attempt to cover a certain departure from an established law of the land, and a certain violation of the Constitution of the United States, which we are told have been committed in this country. Sir, recollect that Congress met on the first of December, that the President had information of the incipient stage of this conspiracy about the last of September--that the proclamation issued before Congress met, and yet that no suggestion, either from the Executive or from either branch of the Legislature, has transpired touching the propriety of suspending the writ of habeas corpus until this violation has taken place. I will never agree in this side-way to cover up such a violation, by a proceeding highly dangerous to the liberty of the country, or to agree that this invaluable privilege shall be suspended, because it has been already violated, and suspended, too, after the cause, if any there was, for it has ceased to exist. No; I wish to be true to those principles which I have constantly maintained, and, God willing, ever will maintain so long as I have a seat on this floor, or have life. It has heretofore been the glory of those with whom I have acted, that in all our battles we have combated for the principles of the constitution and the laws of our country, in the persons of those in whom they have been attempted to be violated, however infamous and contemptible. When those principles were prostrated under the sedition law, what did we say? That the character of the man accused could not change the laws of the land, or impair his rights--that we would support the constitutional rights of the citizen, in the person of the meanest reptile, as well as in the persons of those who occupy the highest stations in society. We have done so--let us continue to do so, regardless of popular clamor or odium, and we shall still continue to find ourselves on true ground. We never inquired what kind of a man Callender was--we said, such is the law and the constitution; let justice take its course. I could quote other examples equally strong, but in deference to the feelings of the House I shall desist from doing it.

I beg pardon for detaining the House so long. I will, however, endeavor to express the remaining ideas I have to offer in a few words. There is another consideration which renders this bill highly objectionable. I consider the case as now at issue, whether the United States is under a military or civil government, or, in other words, whether the military government is subject to the civil power, or the civil authority to the military. I conceive that a case has occurred, in which the military has not only usurped the civil authority, but in which it has usurped nothing short of omnipotent power; and I consider this bill as calculated to give a softening and smoothing over to this usurpation; and on this ground I cannot assent to it. Suppose this bill either to pass or not to pass, what has been the practice under the constitution? By the expression, under the constitution, I do not mean conformably to it. Men have been taken up by a military tribunal, and have been transported contrary to law. I say transported, for if a man can be transported from the district where the offence with which he is charged was committed, he may also be deported to Cayenne, or transported to Botany Bay. And even you yourself, (addressing the Speaker,) if such acts be sanctioned by this bill, in your passage from this House to your lodgings, may be arrested, put on board a vessel and carried whithersoever the military authority may choose. To this I will never give my consent. It has been very well remarked by my colleague, that this is not the first case in which an insurrection has occurred in the United States, but that it is the first case in which an attempt has been made to suspend the precious privilege of the writ of habeas corpus.

I put it to any man, whether, now that we have received information of the extent of this conspiracy, and when we find that Catiline, Cethegus, and Lentulus, have not as many brother conspirators as themselves, this conspiracy is equal to that in Pennsylvania in 1794 or 1795? In physical force it is not comparable to it, however in intellectual talent it may be. I conceive then that according to the Constitution of the United States, there is but one case in which the writ of habeas corpus can be suspended, and I should not go into this view of the subject, if it had not been misstated by all those who have preceded me in the debate. My view of the subject is this--that this privilege can only be suspended in cases in which not merely the public safety requires it, but that the case of the public safety requiring it, must be united with actual invasion or actual rebellion. Now, with whatever epithets gentlemen may dignify this conspiracy, I am not even of the opinion of the gentleman from Maryland (Mr. R. NELSON)--I think it nothing more nor less than an intrigue--and I am happy that I can declare on the honor, not of a soldier, but of a citizen, that I believe it to be a foreign intrigue, availing itself of domestic materials for answering its purposes, and poor indeed must be the soil of this, or of any other state of society, which would not furnish such materials.

A gentleman from Massachusetts has stated to the House that the organization and administration of the Government, at this time, forbids the apprehension of any abuse being made of the powers delegated under this law. Surely, sir, the gentleman could not mean to urge this as any thing new. He must have known, if he had consulted history--as doubtless he has--that the king de facto, and the administration de facto, are always above suspicion. That there never was a proposition brought forward, that did not find a majority ready to say, There is surely no danger of any improper use of this power in our time, for we are all honorable men, and we would not delegate it, if an improper use could be made of it; and that, if we reject a measure, we ought not to do it so much on account of ourselves, as on account of those who come after us. And what will those who come after us say of us? They will follow our example, and declare that the character of their forefathers was above every doubt and every suspicion. Now, for myself, I beg leave to be permitted to disclaim every argument of this kind. I do not, indeed, consider it fair to introduce such an argument. Let us take up the question on its own merits and demerits, without any allusion or reference to our own virtues, or the degeneracy of posterity. For myself, I have no hesitation in saying that I will not grant this power at any time, except under the most imperious necessity; and I say this without any disrespect to this honorable body, or to any of the public functionaries. Take man as he is, and in his best estate, you find him an animal prone to abuse and corruption. There does not exist a single constitution or law in the world, that does not enforce this salutary truth.

I shall consider this bill, if it passes, as establishing a new era in the Government. When I was a boy, I recollect to have consulted such chronological tables as I could get access to. I recollect to have read, that at a certain time, monarchy was abolished in Rome; a little while after, the first Dictator was named; then the second Dictator--and I believe, as in a case of apoplexy, she scarcely got over the third fit. I believe a suspension of the writ of habeas corpus might have, here, the same effect as the establishment of the first Dictatorship at Rome. In what situation would it place yourselves and the citizens of this country? It would leave them at the mercy, not merely of a justice of the peace, but at the mercy of every subaltern officer of the army and navy. I believe it would comport as much with the safety and interest of this confederacy to give us power to send these people off, as to put this power in their hands. I believe we should be as trustworthy as they. And, let me ask, what compensation to an innocent man, to a man of honor and feeling, to a man of character, who should be tied neck and heels and sent off to New Orleans, and who should ultimately be proved to be innocent--I ask what compensation it would be to him to bring an action of damages? Against whom? A man without visible property? And what action? An action on the most mercenary principle. To be indemnified in his fame by dollars and cents. The injury would be irreparable. At present, all stand under the law. If any one offend, let him be brought under it. But, in this way, to put a man in an oyster boat, or skipper, and transport him to a distance from the place of his arrest, and then say he shall have a remedy, in case of his innocence, against an inferior officer, is absurd. If we pass such a bill, which God forbid! it should contain a large appropriation, and Government should be obliged to make good the injured party--to afford him redress. I say they should grant a large appropriation, for it is not for men with epaulets and gold buttons to make reparation. If the bill passes, we are told it will be but temporary. Why, the Sedition law was but temporary; and I think, sir, (alluding to the Speaker,) you were one of those who aided its passage--much against your will--by being present at the altar when it was more than once re-enacted. As to its three months continuance, I consider that as one of the most objectionable features of the bill--as a bait to the trap; as the entering wedge. If it is made reconcilable to the interests and feelings of this House to pass it for three months, do you think we will then feel the same lively repugnance to it that we now do? No! It has been truly said, that no man became perfectly wicked at once; and it may be affirmed, with equal truth, that a nation is never enslaved at once. Men must be initiated by degrees, and their repugnance must be gradually overcome. Let me state a case. It is proposed to extend the time of service of the Executive Magistrate from four, to five, or eight years, or for life. If it be prolonged for a term, do you believe we shall stop at its expiration? No! Once extended for life, he will then claim the power to choose his successor, and the hereditary principle will follow. This is the old trick. Let me, however, tell gentlemen that old birds are not to be caught with chaff, though, unfortunately for them, the mass of mankind does not consist of old birds. Pass one other law, and I would quit the country. A twin brother to this same bill was introduced into the British Parliament in 1794; and that bill to prevent seditious assemblies, was brought forward for about as good reasons as this. According to it, if four or five persons assembled, and refused on the notice of a magistrate, to disperse, they were considered guilty of sedition, and were dispersed by force. These two bills form a complete tyranny--and tyranny of the most odious kind, because established under the mask of liberty. Was the tyranny of Robespierre less intolerable, oppressive, or odious, because inflicted in the name of the people, than a like tyranny in Turkey, under the Grand Seignor and his Muftis? Take one other thing along with you. These two fatal wounds, inflicted on the liberties of the English nation, were inflicted by the man who came forward in the character of a reformer--by the man who came forward as the advocate of a Parliamentary reform; from which circumstance he acquired that popularity which enabled him to inflict those deadly wounds on the liberty of his country.

Having said so much with regard to the principle, permit me to add one word on the details of the bill. There is a departure in it from the known, accustomed, and received language of the constitution, in the use of the word “authority.” The words are “warrant or authority.” The expression is, in my opinion, too lax. Perhaps, we may be told, that the bill may be amended on the third reading. But my objection to the principle contained in it is such, that I will not consent to carry to a third reading that which under no amendment can be rendered palatable to my taste. Mr. R. concluded by observing that he had so far exhausted himself that he was unable to go on.

Mr. SMILIE.--I shall not detain the House long by the remarks which I propose to make on this subject. I shall waive all observations on the mode of proceeding on this occasion--whether we shall reject the bill on its first, or suffer it to go to a second reading. The question is now put, and I am called upon to give my vote, either in the affirmative or negative. I, therefore, feel under a necessity to put my negative upon it. I consider this one of the most important subjects upon which we have been called to act. It is a question which is neither more nor less than, whether we shall exercise the only power with which we are clothed, to repeal an important part of the constitution? It is in this case only, that we have power to repeal that instrument. A suspension of the privilege of the writ of habeas corpus is, in all respects, equivalent to repealing that essential part of the constitution which secures that principle which has been called, in the country where it originated, the “palladium of personal liberty.” If we recur to England, we shall find that the writ of habeas corpus in that country has been frequently suspended. But, under what circumstances? We find it was suspended in the year 1715, but what was the situation of the country at that time? It was invaded by the son of James II. There was a rebellion within the kingdom, and an army was organized. The same thing happened in the year 1745. On this occasion it was found necessary to suspend it. In latter times, when the Government had grown more corrupt, we have seen it suspended for an infinitely less cause. We have taken from the statute book of this country, this most valuable part of our constitution. The convention who framed that instrument, believing that there might be cases when it would be necessary to vest a discretionary power in the Executive, have constituted the Legislature the judges of this necessity, and the only question now to be determined is, Does this necessity exist? There must either be in the country a rebellion or an invasion, before such an act can be passed. I really doubt whether either of these exist. I really doubt whether a single law of the United States has been, as yet, violated. I will not say this is the fact; but I do not know any thing to prove the contrary. But, supposing that a rebellion does exist, we are then left at liberty to decide whether it is such a one as to endanger the peace of society to such a degree that no ordinary remedy will answer. If an ordinary remedy will not, it may be our duty to apply an extraordinary one. What is this mighty business? What is the opinion of the Executive as to its danger? Does he consider it dangerous? It is a little remarkable that, in every instance under the British Government, the proposition of such a measure originated with the Executive, while here, without any intimation of danger from the Executive, we propose, on our own suggestion, to suspend one of the most valuable privileges that is secured to the citizen. Let us attend to the communication of the President on this subject. He states that, according to his information, the persons concerned in the conspiracy depend on receiving two kinds of aid; foreign aid, and aid derived in their own country. After giving his opinion of the foreign aid expected, he says:

“On the whole, the fugitives from the Ohio, with their associates from Cumberland, or any other place in that quarter, cannot threaten serious danger to the city of New Orleans.”

The President declares that, in his opinion, there is no danger to be apprehended. With regard to foreign force, he states his reasons for thinking there is no danger. As the Message is in the hands of every gentleman, there can be no necessity for me to read it. But he explicitly declares, from the state of our relations with other nations, there can be no danger from that quarter. This being the deliberate opinion of the Executive Magistrate, who is more deeply responsible on this occasion than any other member of the Government, is it not most extraordinary that we should attempt to take steps which can only be justified in the last resort? Are gentlemen aware of the danger of this precedent? This is the first attempt ever made under the Government to suspend this law. If we suspend it when the Executive tells us there is no danger, on what occasion may it not be suspended? Let us suppose that it shall be suspended on this occasion, what will be its effect? Parties will probably for ever continue to exist in this country. Let us suppose a predominant party to conjure up a plot to avenge themselves. Do not gentlemen see that the personal liberty of all their enemies would be endangered? I mention this to forewarn gentlemen of the dangerous ground before them. I do not say that our country may not, at some future day, be in such a situation as to justify such a suspension, but I have never yet seen her in such a situation, and, at this moment, I think it does not exist. When we see the great body of the people so firmly attached to their Government, ought we to be thus alarmed on beholding a few desperate and unprincipled men attempting to stir up an insurrection? There is another consideration which will induce me to give my hearty negative to this bill. If foreign nations see that we are obliged, under such circumstances, to suspend the writ of habeas corpus, will it not show that the constitution is incapable of supporting itself, without the application of the most dangerous and extraordinary remedies?

Mr. DANA.--I understand that the question is, whether the bill shall be rejected on its first reading, without passing through the ordinary forms of proceeding. In such cases, the ordinary question is, Is there any thing in the bill proper for the House to deliberate upon? If they are of opinion that it can be modified in such a way as to ensure its passage, it ought to go to a Committee of the Whole. This was my opinion when the motion was first made to reject the bill. I was disposed to vote against the question, although the bill went to repeal the constitution. I have been accustomed to view the privilege of the writ of habeas corpus as the most glorious invention of man. I was notwithstanding, however, from a respect to the other branch of the Legislature, disposed to investigate the subject--to examine whether there was any necessity for it. As, on the one hand, I was inclined to believe that the judgment of the Senate had, on this occasion, been tinged by a strong abhorrence of rebellion; so I was willing, on the other, to take time to guard myself against an equally strong feeling of abhorrence of dictators. But, on one principle, I cannot agree to consider this bill as a proper subject of investigation, for one moment. I perceive, on further examination of the bill, that the Senate have provided for its suspension in cases where persons have been already presented. Had it been confined to future arrests, I might have agreed to deliberate on it, but viewing it in the light of an ex post facto law, I must give it my instantaneous negative. There is another principle which appears to me highly objectionable. It authorizes the arrest of persons, not merely by the President, or other high officers, but by any person acting under him. I imagine this to be wholly without precedent. If treason was marching to force us from our seats, I would not agree to do this. I would not agree thus to destroy the fundamental principles of the constitution, or to commit such an act, either of despotism or pusillanimity. Under this view of the subject, I am disposed to reject the bill, as containing a proposition on which I cannot deliberate.

The yeas and nays were then taken on the question, “Shall the bill be rejected?”--yeas 113, nays 19, as follows:

YEAS.--Willis Alston, jr., Isaac Anderson, David Bard, Joseph Barker, Burwell Bassett, George M. Bedinger, Silas Betton, William W. Bibb, Phanuel Bishop, John Blake, jr., Thomas Blount, James M. Broom, Robert Brown, John Boyle, William A. Burwell, William Butler, George W. Campbell, John Campbell, Martin Chittenden, John Claiborne, Joseph Clay, Matthew Clay, George Clinton, jr., Frederick Conrad, Orchard Cook, Leonard Covington, Samuel W. Dana, Ezra Darby, John Davenport, jr., John Dawson, Theodore Dwight, Peter Early, James Elliot, Caleb Ellis, Ebenezer Elmer, William Ely, John W. Eppes, William Findlay, James Fisk, John Fowler, James M. Garnett, Charles Goldsborough, Peterson Goodwyn, Edwin Gray, Andrew Gregg, Silas Halsey, John Hamilton, Seth Hastings, James Holland, David Holmes, David Hough, John G. Jackson, Walter Jones, James Kelly, Thomas Kenan, John Lambert, Joseph Lewis, jr., Henry W. Livingston, Edward Lloyd, Matthew Lyon, Duncan McFarland, Patrick Magruder, Robert Marion, William McCreery, David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, John Morrow, Jonathan O. Mosely, Jeremiah Nelson, Roger Nelson, Thomas Newton, jr., Timothy Pitkin, jr., John Porter, John Pugh, Josiah Quincy, John Randolph, Thomas M. Randolph, John Rea of Pennsylvania, John Rhea of Tennessee, John Russell, Peter Sailly, Thomas Sammons, Martin G. Schuneman, Ebenezer Seaver, James Sloan, Dennis Smelt, John Smilie, John Smith, Samuel Smith, Richard Stanford, Joseph Stanton, William Stedman, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, Samuel Tenney, Philip R. Thompson, Thomas W. Thompson, Uri Tracy, Abram Trigg, Philip Van Cortlandt, Killian K. Van Rensselaer, Peleg Wadsworth, John Whitehill, Robert Whitehill, David R. Williams, Marmaduke Williams, Alexander Wilson, Joseph Winston, Richard Wynn, and Thomas Wynns.

NAYS.--Evan Alexander, John Archer, Barnabas Bidwell, John Chandler, Richard Cutts, Elias Earle, Isaiah L. Green, William Helms, Josiah Masters, Gurdon S. Mumford, Gideon Olin, Thos. Sanford, Henry Southard, David Thomas, Joseph B. Varnum, Daniel C. Verplanck, Matthew Walton, Eliphalet Wickes, and Nathan Williams.

MONDAY, February 2.

Death of the Representative, Levi Casey, Esq.

Mr. THOMAS MOORE, a member of this House for the State of South Carolina, informed the House of the death of his colleague, General LEVI CASEY, late one of the members of the said State in this House: Whereupon,

Resolved, unanimously, That a committee be appointed to take order for superintending the funeral of General LEVI CASEY, late a Representative from the State of South Carolina.

Ordered, That Mr. THOMAS MOORE, Mr. EARLE, Mr. D. R. WILLIAMS, Mr. MARION, Mr. EARLY, and Mr. HOLLAND, be appointed a committee, pursuant to the said resolution.

Resolved, unanimously, That the members of this House will testify their respect for the memory of General LEVI CASEY, late one of their body, by wearing crape on the left arm for one month.

On motion of Mr. HOLLAND,

Resolved, unanimously, That the members of this House will attend the funeral of the late General LEVI CASEY this day, at one o’clock.

Resolved, unanimously, That a message be sent to the Senate to notify them of the death of General LEVI CASEY, late a member of this House, and that his funeral will take place, this day, at one o’clock.

THURSDAY, February 5.

National Defence.

GUNBOATS.

The House resumed the consideration of the unfinished business of yesterday, being the report of a committee on fortifying our ports and harbors.

The question was taken on the amendment offered by Mr. VAN CORTLANDT, which was disagreed to--ayes 51, noes 54.

The question then recurred on filling the blank in the 2d resolution with “$250,000,” for building fifty gunboats.

Mr. MUMFORD.--I hope a majority of this House will agree to strike out the whole resolution respecting gunboats, with a view to appropriate that money to solid and durable fortifications. I was opposed to it in Committee of the Whole. I did then, and do now consider, that there is no necessity for any more gunboats. There are, in my opinion, a sufficient number already for the Southern sections of the Union, for which places they appear to be only adapted, except in a very few places to the North, where there is shoal water. They may answer a very good purpose in shoal water, but are inadequate for the defence of your ports and harbors to the north of the New Jersey shore; and I very much doubt, whether, in a gale of wind, they would not even sink at their mooring at the entrance of either of the harbors of Portsmouth, Salem, Plymouth, Newport, or New York.

It has been asserted that this was an electioneering scheme, and that as soon as our Spring elections were over, no more would be thought of it until the next election. I wish, sir, to put this question to eternal rest, by stating the plain matter of fact. Why, sir, it has been considered of so serious a nature in its consequences, and of so much importance, that the Legislature of the State of New York, in their last session, did enter into formal resolutions, instructing their delegation, in both branches of the Legislature of the United States, to use their utmost endeavors for the defence and protection of the port and harbor of New York: the whole State is alive on this subject--and the memorials now lying on your table from the Mayor and Corporation of that city, together with the petitions from the citizens of all political parties, tend to one and the same object, protection to their persons and to their property; there is not, there cannot be any dissenting voice with them on this subject.

Mr. J. RANDOLPH was too unwell to go far into the subject, but he would ask the House whether they were acting with their accustomed caution and distrust, where the expenditure of public money was involved? He thought not. If he were convinced that the expenditure of $150,000 or even $1,500,000 would answer the proposed end, he would cheerfully give it. But, as had been observed, the system of gunboats was matter of experiment, and if they should eventually turn out good for nothing, the House would be of opinion that they had vested as large a capital in a worthless project as would be deemed necessary. He would not undertake to say that they were good for nothing--far from it. But there was no information before the House which entitled him to say they were good for much. When you compare, said Mr. R., the lavish appropriation made on this subject in Committee of the Whole, and view the economy this House always practises on every branch of expenditure, relative to the regular army and navy, looking with an eagle eye on every dollar before they part with it--it surprises me to see them voting away hundreds of thousands of dollars for a species of vessel, which, in all human probability, may be used for river craft in a few years. One thing has been ascertained. Ships of war are defensive and offensive, too, but the House will vote no money for an addition to them. I do not censure them for it; but if they will not appropriate for objects, the physical powers of which are ascertained, why vote the public treasure by handfuls for vessels, the powers of which have never been tried? Let the experiment be made, and, if it succeeds, let us appropriate liberally; but, till then, let us not vote more money than has been already appropriated. I believe there is one situation in which they may be useful--in the Mississippi. I wish, however, not to be understood as speaking as a man of science on this business. I only wish some evidence of the value of this machine, before I vest so large a capital in it. I hope, therefore, that the blank will not be filled with $150,000. As it has been stated, I think it will be extremely disproportionate to vote $20,000 for the fortification of all our harbors, and $150,000 for gunboats.

Mr. ELMER said that, under existing circumstances, he was opposed to appropriating 150,000 dollars to building additional gunboats. The House had determined that they would not authorize the President to man those already built. It appeared to him very bad economy to suffer the public vessels to lie in dock, and to build other vessels, the utility of which was not ascertained. There might be situations in which gunboats would be useful, but had they not enough of them already? If it should be ascertained that thirty or forty gunboats should be wanted for any particular purpose, Mr. E. said it might be prudent to authorize their erection. He said he had been in favor of giving authority to the President to man and equip the armed vessels and gunboats. The House had, however, refused this. If, then, they would not authorize the President, whatever the emergency, to man the present vessels, why build additional vessels?

Mr. HOLLAND was opposed to filling the blank with so large a sum. He was also opposed to giving authority to man the armed vessels. The nation was in a state of profound peace, and he did not see that these vessels would have any thing to do. He was opposed to this appropriation on another ground. He believed, whenever the necessity should occur, they would be able, in one, two, or three months, to build as many gunboats as would be wanted.

Mr. GREGG said, from the discussions which had taken place, and the votes of the House, there might be a propriety in postponing the business for the purpose of obtaining information. For his own part, he was willing to acknowledge that he was altogether in the dark. He did not know in what situation gunboats would be useful, or the number of men required to man them; nor did he know whether land fortifications were necessary, in connection with them, to defend the port of New York. Before he could act understandingly on the subject, it was necessary for him to have this information. Some gentlemen say that gunboats will answer valuable purposes, while there are others of opinion that there are so few places, on the coast of the United States, where they will answer, that a small number of them will be sufficient. I believe, said Mr. G., under these circumstances, that it will be best to postpone the further consideration of the subject, and, in the mean time, call on the Secretary of the Navy to say at what points gunboats will answer, together with the number of them necessary, and on the Secretary at War to say whether he is in possession of any plan for the protection of New York, together with its expense and the number of men required. It will be next to madness to erect fortifications without putting in them sufficient men to keep them in repair. Many fortifications, commenced some years ago, for want of this provision, are now as useless as if they never had been begun. Mr. G. said he was particularly desirous to obtain information from the Executive as to the practicability of defending the port of New York. If it could be defended, he would not be backward on the subject.

Mr. FISK hoped the motion would prevail. Experience had proved gunboats to be useful. In their late war with Tripoli, they had been obliged to borrow a number of them, which had proved not only an instrument of defence, but likewise of offence. It was true, also, that, in other cases, they would be useful. Indeed, they appeared to be peculiarly adapted to the United States, who had a large extent of seacoast and numbers of shoals, enabling them to act with effect; that they would rot in time was true; it was also equally true that other shipping would rot; and that the loss of fifty or sixty gunboats would not be equal to that of a single frigate. It was also equally true that gunboats did not require the same expense in manning and equipping as other vessels; they were also so situated as to be capable of being instantly manned, which was not the case in regard to other vessels. The Secretary of the Navy had stated the number of men necessary for each gunboat at twenty-seven. Take three hundred and fifty men as necessary for a frigate; of course thirteen gunboats will not require more men than one frigate. Mr. F. said he thought gunboats, in every point of view, the preferable defence. The Secretary of the Navy had stated sixty gunboats to be requisite. For the purpose, however, of accommodation, it is proposed to lessen the number of gunboats to thirty, and to apply the remaining sum to fortifications. He hoped this motion would prevail.

Mr. EARLY moved to postpone the further consideration of the second resolution to Monday week. In common with other members, he felt the necessity of information, before he agreed to carry further the system of gunboat defence. It appeared from the report of the Secretary of the Navy, that there were built, or on the stocks, seventy gunboats. He, for one, was of the opinion that this was a number amply sufficient to justify the requiring at least some information on the subject, either as to the ports capable of being defended by them, or their general capability of yielding defence to the United States.

The motion to postpone was disagreed to--ayes 49, noes 58.

Mr. G. W. CAMPBELL said he was in favor of filling the blank with $150,000, as from all the official information before the House this appeared to be the best mode of defence which had been devised. He observed that some time since a majority of the House had considered the gunboat system as the best means of defence. He would ask gentlemen who were then in favor of this system, and were now opposed to it, what reasons they had for their change of opinion. If the President and Heads of Departments were of opinion that such a number of gunboats was necessary as had been named, he would ask them what reasons they had for thinking a smaller number sufficient, and whether the mere ipse dixit of a member of this House ought to stand in competition with the deliberate opinion of the heads of departments? They were peculiarly responsible to the nation, and must be considered as having taken more pains to inform themselves on such a subject than an individual member of the House.

Mr. PITKIN, in reply to Mr. FISK, observed, that he had compared the estimates of a frigate and gunboats, from which he inferred that the equipment and annual expense of a frigate of 44 guns, compared to that of gunboats, was as eighteen to one.

Mr. ELLIOT said, that if the opinion of the President should be complied with, there would be one hundred and twenty-nine gunboats built, which in actual service would transcend the expense of the Navy of the United States, and would cost more than a million of dollars. Mr. E. said he considered the reproach cast upon those who were formerly the advocates of gunboats, as strong evidence of their inutility. Gunboats had been lately thought much of; what was the result? That gunboats might be considered as a kind of vessel guarding a little deposit of national spirit, if any there was left to put on board: but as soon as they were assailed by the wind or waves, their maiden purity was gone. They were of no use whenever there was wind or tide, and could only float in a time of profound tranquillity.

Mr. ALSTON said he possessed little information with regard to the advantages or disadvantages that were likely to flow from building the number of gunboats that was proposed. He merely rose to ask the attention of gentlemen to the grounds taken at the last session. The building of gunboats had been instituted on the recommendation of the President made at the last session. Gentlemen would there find the reasons on which that system had been begun. They were not intended to be set afloat on the ocean, to commit depredation or attack vessels at sea, but as an aid and support to our fortifications, and to prevent an enemy from annoying our seaports. It was, he believed, the opinion of the House at the last session, that gunboats constituted the best system that could be devised for this purpose.

Mr. EARLY moved to postpone the further consideration of the resolution until this day week.

Mr. LLOYD said he should have no objection to the postponement, if he knew any mode of obtaining the information desired. It appeared that the committee had applied to the Secretary of the Navy, who ought to possess full information on the subject. What was his reply? Waiving altogether the expression of his own opinion, he merely confined himself to stating that the President thinks it expedient to build sixty additional gunboats. Whence, then, were they to get the information that was desired, to enable them to determine whether gunboats are a proper defence for the United States? They might apply to the President or the Secretary of the Navy, and get information from them that they think them necessary. Mr. L., however, said that he was of opinion that they ought to judge on this subject from what had already taken place. For himself he was free to declare that he was opposed to the gunboat system. He had carefully attended to the arguments of gentlemen, and to what did they amount? Have they adduced an argument to show their utility, or produced an instance to show where they have been useful? It has been said that their utility is established by the use made of them against Tripoli. But he would ask whether they would have been of any use if the vessels of Tripoli had left the shore? It was admitted that gunboats were not useful on the ocean. It was evident, then, that they were building a navy for a state of perfect calm; and were gentlemen disposed to expend millions for vessels that would be only useful under such circumstances?

Mr. MUMFORD.--The gentleman from North Carolina on my right, said that if any gentleman can show us any better mode of defence we shall be glad to hear it, and although I think it incumbent on him to show us the utility of gunboats, I will not detain the House but a few minutes to recommend what I conceive to be a far better mode of defence, I mean solid and durable fortifications that will last for ages, and block-ships similar to the draught now held in my hand, and which any gentleman may examine at his leisure if he chooses. Sir, the experience off Copenhagen is an evidence of their real utility. Witness the engagement with the British fleet and the Crown battery, (somewhat similar to the plan of Montalembert, recommended by me in debate yesterday,) and the block-ships. That fleet was actually silenced, and nothing saved the proud navy of old England on that memorable day but the game of flag of truce played off so successfully by the hero of Trafalgar; and when in order I shall move to adopt those block-ships in place of gunboats.

Mr. TALLMADGE said the question before the House had no connection with the defence of New York; it was a proposition for building gunboats. Having been on the select committee that brought in these resolutions, he thought it proper to state that there had not in that committee been a unanimous opinion in favor of gunboats. He was himself entirely hostile to the measure. He saw no necessity for adding to the number already built, or authorized to be erected. They had thirteen gunboats fit for service, and fifty-six would be soon launched. It would seem to him better to comport with the system of economy, in the first instance, to finish and prepare these fifty-six for service. No reason had been assigned for the additional sixty that had been proposed, but the mere opinion of the President. Mr. T. said he did not wish to call in question the high authority attached to the opinion of the President, but he would wish to know whether any naval officer had recommended gunboats as a proper defence for the country. He did believe there were some particular circumstances under which they would be useful, and under this impression he had hitherto voted. But when he saw nothing but gunboats called for, he was placed under the necessity of refusing to grant a single dollar. It appeared as if they were contemplated to be relied on as the exclusive defence of the United States, and as if it were intended to let the frigates rot. He was opposed to the postponement, as he did not see the probability of obtaining any useful information not already before the House.

The question was then taken on postponing the consideration of the resolution until Monday, which was carried--yeas 69.

THURSDAY, February 12.

Indiana--Suspension of the Anti-slavery Clause of the Ordinance of 1787.

Mr. PARKE, from the committee to whom was referred the letter of William Henry Harrison, Governor of the Indiana Territory, enclosing certain resolutions of the Legislative Council and House of Representatives of the said Territory, made the following report:

That the resolutions of the Legislative Council and House of Representatives of the Indiana Territory relate to a suspension, for the term of ten years, of the sixth article of compact between the United States and the Territories Northwest of the river Ohio, passed the 13th July, 1787. That article declares “there shall be neither slavery nor involuntary servitude in the said territory.”

The suspension of the said article would operate an immediate and essential benefit to the Territory, as emigration to it will be inconsiderable for many years, except from those States where slavery is tolerated; and although it is not considered expedient to force the population of the Territory, yet it is desirable to connect its scattered settlements, and, in regard to political rights, to place it on an equal footing with the different States. From the interior situation of the Territory, it is not believed that slaves would ever become so numerous as to endanger the internal peace or future prosperity of the country. The current of emigration flowing to the Western country, the Territories ought all to be opened to their introduction. The abstract question of liberty and slavery is not involved in the proposed measure, as slavery now exists to a considerable extent in different parts of the Union; it would not augment the number of slaves, but merely authorize the removal to Indiana of such as are held in bondage in the United States. If slavery is an evil, means ought to be devised to render it least dangerous to the community, and by which the hopeless situation of the slaves would be most ameliorated; and to accomplish these objects, no measure would be so effectual as the one proposed. The committee, therefore, respectfully submit to the House the following resolution:

Resolved, That it is expedient to suspend, from and after the 1st day of January, 1808, the sixth article of compact between the United States and the Territories and States Northwest of the river Ohio, passed the 13th day of July, 1787, for the term of ten years.

Referred to the consideration of the Committee of the Whole on Monday next.

FRIDAY, February 13.

Importation of Slaves.

The bill, sent from the Senate, entitled “An act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the first day of January, in the year of our Lord one thousand eight hundred and eight,” together with the amendments agreed to yesterday, were read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas 113, nays 5, as follows:

YEAS.--Evan Alexander, Isaac Anderson, John Archer, David Bard, Joseph Barker, Burwell Bassett, George M. Bedinger, William W. Bibb, Barnabas Bidwell, Phanuel Bishop, John Blake, jr., Thomas Blount, James M. Broom, Robert Brown, John Boyle, William A. Burwell, George W. Campbell, John Chandler, John Claiborne, Joseph Clay, Matt. Clay, George Clinton, jr., Frederick Conrad, Orchard Cook, Leonard Covington, Richard Cutts, Samuel W. Dana, Ezra Darby, John Davenport, jr., Elias Earle, Peter Early, James Elliot, Caleb Ellis, Ebenezer Elmer, Wm. Ely, John W. Eppes, William Findlay, James Fisk, Charles Goldsborough, Peterson Goodwyn, Andrew Gregg, Isaiah L. Green, Silas Halsey, John Hamilton, Seth Hastings, William Helms, David Holmes, John G. Jackson, Walter Jones, James Kelly, Thomas Kenan, Nehemiah Knight, John Lambert, Joseph Lewis, jr., Henry W. Livingston, Edward Lloyd, Matthew Lyon, Duncan MacFarland, Patrick Magruder, Robert Marion, Josiah Masters, William McCreery, David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, John Morrow, Jonathan O. Mosely, Gurdon S. Mumford, Jeremiah Nelson, Thomas Newton, jr., Gideon Olin, Timothy Pitkin, jr., John Porter, John Pugh, Josiah Quincy, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, John Russell, Peter Sailly, Thomas Sammons, Thomas Sanford, Martin G. Schuneman, Ebenezer Seaver, James Sloan, Dennis Smelt, John Smilie, John Smith, Samuel Smith, Richard Stanford, Joseph Stanton, William Stedman, Samuel Taggart, Benjamin Tallmadge, Sam’l Tenney, David Thomas, Thomas W. Thompson, Uri Tracy, Philip Van Cortlandt, Killian K. Van Rensselaer, Joseph B. Varnum, Daniel C. Verplanck, Peleg Wadsworth, Matthew Walton, John Whitehill, Robert Whitehill, Eliphalet Wickes, Nathan Williams, Alex’r Wilson, Joseph Winston, Richard Wynn, and Thomas Wynns.

NAYS.--Silas Betton, Martin Chittenden, James M. Garnett, Abram Trigg, and David R. Williams.[47]

MONDAY, February 16

Circuit Courts.

The bill sent from the Senate, entitled “An act establishing circuit courts in the district of Kentucky, Tennessee, and Ohio,” together with the amendments agreed to on the thirteenth instant, were read a third time: Whereupon, the bill, with amendments, was recommitted to a Committee of the Whole this day.

The House, accordingly, resolved itself into the said committee; and, after some time spent therein, the bill and amendments were reported without amendment thereto.

The bill was then read the third time, and on the question that the same do pass? it was resolved in the affirmative--yeas 82, nays 7.

Lewis and Clarke.

The House resolved itself into a Committee of the Whole on the bill making compensation to Messieurs Lewis and Clarke, and their companions. The bill was reported with several amendments thereto; which were severally twice read, and agreed to by the House. The House proceeded further to amend the said bill: When an adjournment being called for, the House adjourned.

TUESDAY, February 17.

The Writ of Habeas Corpus.

The House proceeded to consider the motion of Mr. BROOM, of the seventh instant, and the same being read in the words following, to wit:

“Resolved, That it is expedient to make further provision, by law, for securing the privilege of the writ of habeas corpus, to persons in custody, under, or by color of, the authority of the United States.”[48]

Mr. BROOM addressed the House as follows:

Mr. SPEAKER: It will be recollected by the House that I had the honor of submitting a resolution to make further provision by law for securing the privilege of the writ of habeas corpus to persons in custody, under or by color of the authority of the United States. It was then my wish that it should lie upon the table, in order that members might have an opportunity of considering the subject; being fully persuaded that the more it was considered the more evident would the importance of it appear. As it now becomes my duty to call the attention of the House to the subject, I shall move that the resolution be referred to a Committee of the whole House, and I should not offer a single observation in support of this motion, but for the doubts which have been suggested by several members, of the necessity and propriety of legislative interposition at this time. I trust therefore that I shall be indulged in pointing out the necessity and importance of the provision which it is contemplated to make. I am sensible that this subject is not familiar to the majority of this House; for, until now, no circumstance has occurred in this country which could make us duly appreciate the value of the privilege of the writ of habeas corpus. In ordinary times, the laws which already exist may be sufficient, for in such times there is no temptation to transgress the limits of constitutional or legal privileges; but in times of turbulence and commotion, the mere formal recognition of rights will afford too feeble a barrier against the inflamed passions of men in power, whether excited by an intemperate zeal for the supposed welfare of the country, or by the detestable motives of party rancor or individual oppression. I could have wished that circumstances had never occurred which would make it necessary to fortify, by penal laws, the constitutional privilege of habeas corpus, and that the whole nation, from the first to the least, had regarded it with such religious veneration, that no officer, either military or civil, would have dared to violate it. But recent circumstances have proved that such a wish would have been in vain, and have demonstrated, more powerfully than any abstract reasoning, the necessity and importance of further legislative provision.

This privilege of the writ of habeas corpus has been deemed so important that, by the ninth section of the first article of the constitution, it is declared that it shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it. Such is the value of this privilege, that even the highest legislative body of the Union--the legitimate Representatives of the nation--are not entrusted with the guardianship of it, or suffered to lay their hands upon it, unless when, in cases of extreme danger, the public safety shall make it necessary.

The suspension of this privilege upon slight pretences, it was easily foreseen would destroy its efficacy, and if it depended on the mere will of Congress, it would become, in the hands of the majority, the most certain and convenient means to accomplish the purposes of party persecution, or to gratify political or personal rancor or animosity. This constitutional provision was only intended as a check upon the power of Congress in abridging the privilege; but was never intended to prevent them from intrenching it around with sound and wholesome laws; on the contrary, it was expected that Congress were prohibited from impairing, at their pleasure, this privilege; that they would regard it as of high importance, and by coercive laws insure its operation. By the fourteenth section of the judiciary law, vol. 1, L. U. S., page 58, power is given to certain courts and judges, to grant the writ of habeas corpus; and this is all the provision made by any act of Congress to secure this privilege. Thus the constitution sanctions the writ, and the act of Congress gives the judges power to grant it; but there is no law of the United States which compels the judge to grant it, or the officer to obey it; and the only remedy left to the individual is that which he derives from the common law of England, (if, indeed, gentlemen will allow to that law any operation in the United States courts;) and that very law upon which we now rely to enforce the privilege was found, during the reign of Charles II., utterly insufficient, and has ever since the thirty-first year of that reign, been considered in England as only auxiliary in securing the privilege of the writ of habeas corpus.

As the House has now agreed to consider the motion, I will proceed in support of it. The statute 31, chapter 2, was designed to remedy, and did effectually remedy, the defects of the common law provision on this subject. By that statute severe penalties were imposed on judges refusing to grant the writ of habeas corpus, and on all parties refusing to obey it. In most of the States, laws have been made upon the principle of the statute of Charles, and so far as they extend, are found to have the most beneficial effect in securing the privilege of the writ, but they do not extend to inflicting penalties on judges of the courts or officers of the United States. If the privilege of the writ of habeas corpus be important, and the laws be defective, it is surely our duty to apply the remedy. Of its importance, it is true we have had but little experience in our own country. In England, from whence we derive our knowledge of it, they have proved its value; they have tried it, and it has not been found wanting. In England, this inestimable privilege has been for ages the proud theme of exultation; there they worshipped it as a talismanic wand which could unbar the gates of the strongest prison and dissolve in an instant the fetters of the captive. It was to Englishmen as a wall of fire by night, shielding them from the arbitrary sway of tyrannic power. It is, indeed, the great palladium of that English civil liberty which has exalted the English character. Of the power and influence of civil liberty upon the happiness of the people of England we need no stronger evidence than the situation of surrounding nations, where it was unknown. Let us go back to less civilized times, and we shall see in those nations men in the most abject state of society, suffering oppression in every possible shape; there, every private castle was a secret and inviolable prison; there the life and liberty of the most illustrious, as well as the meanest, subject, were alike the sport of the caprice of a tyrant. Even the petty lordling held as it were the shears of fate, and cut at pleasure the thread of the life of his vassals. A lettre de cachet could confine the unhappy victim of power for life in the loathsome walls of a dungeon, and in spite of the ties of affection or blood, friends must forget each other, or share a common fate. The savage tortures of the inquisition chilled the soul with horror, and the gloomy recess of the sanctuaries of religion too often bore witness to the diabolical temper of man when inflamed with passion and unrestrained by wholesome laws. Such was the condition of other countries while the people of England were reposing in security under the protection of their civil institutions; institutions which had received the sanction of ages, and were guarded by the religious veneration of the people. The right to personal liberty, unless for the commission of an offence against law; the right to know the accusation against them, and the right to be tried by their peers, were all recognized by their charters, and which their monarchs had sworn inviolably to observe. These rights were not merely secured by parchment; they were incorporated with the habits, manners, and customs of the people; they were handed down from father to son in trust for posterity, and guarded as a precious inheritance, which could never be diminished with honor. The people were early taught to know them, and to consider it a sacred duty to draw their swords in defence of them. These fundamental rights of Englishmen have existed from their earliest ages; they were collected in a body by Edgar the Saxon; they were revised by Edward the Confessor, and were ratified by William the Conqueror; they were recognized by Magna Charta, and after the wars between Henry III. and his subjects, were confirmed by the statute of Marlborough, and never afterwards questioned. Rights thus maintained through all the convulsions of England; rights thus endeared to the nation, and engraven on the hearts of the people, and which have walked hand in hand with them through the darkest periods of their history, require no other proofs of their importance.

It has been too generally our misfortune to wait until offences have been committed, before we have provided a punishment; but, when such offences have been committed, the public attention has been awakened, and laws have been passed to guard against them in future. The violations of our constitutional privileges at New Orleans, have shown clearly the insufficiency of existing laws and the imperious necessity of providing the remedy. If we will not be roused from our slumbers by the experience which we have had, I shall despair that we will ever be awakened to any sensibility of our personal rights--for, let it be remembered that these abuses are not of an ordinary character--they have been committed by a military officer at the head of the army of the United States, and in full view of the highest authorities of the Union. The civil authority at New Orleans has been trampled under foot, and the commander of the army, in the plenitude of his power, avows his disobedience to laws and constitution, and takes on himself all the responsibility of the violation of our constitutional rights of personal liberty. Lost in amazement at this bold and unprecedented stretch of power, we can scarcely be sensible of its extent, unless we contrast it deliberately with the constitution. The constitution declares that no warrant shall issue but upon probable cause, supported by oath or affirmation; that no citizen shall be deprived of his liberty without due process of law; and that the accused shall enjoy the right of a speedy trial by a jury of the district where the offence was committed. Yet, in defiance of all these constitutional provisions, our citizens have been arrested without any warrant, and without any process of law whatever; deprived of their liberty; confined in military prisons, and transported under military guards, two thousand miles from the place where the offence was committed. The constitutional privilege of the writ of habeas corpus, which is to secure these rights to the citizen, has been treated with contempt, and a military officer vauntingly takes upon himself all the responsibility of wilful disobedience to the writ. For all these violations we are to be told that the conspiracy which existed in that country will afford a sufficient justification. With respect to the conspiracy, whatever might have been its contemplated extent we have reason to believe that it is now at an end. And, without determining whether the aspect which it had at New Orleans was really alarming to the General, or whether any circumstances do exist which may palliate his conduct, this much we all know, that his power was employed in the arbitrary violation of the rights of the citizen, and that the conspiracy is to furnish the justification. Such conduct, and even such a justification, I look upon with abhorrence and dread. For, if, upon every alarm of conspiracy, our rights of personal liberty are to be entrusted to the keeping of a military commander, we may prepare to take our leave of them for ever. For my own part, I wish to live under a government of laws, and not of men; for, however pure and upright be the intentions of our military commanders, however virtuous, and even unsuspected be their conduct, I can never agree that my right to personal liberty shall depend on their forbearance and discretion. I know not whether these men that have been arrested are innocent or guilty of the treason with which they are charged, but, whether innocent or guilty, they must be arrested and tried according to law. However atrocious the crime which has been committed, the punishment must be according to law. For, in transgressing the limits of the law to revenge upon a criminal the wrongs of society, we are guilty of injustice both to society and the criminal. The manner and circumstances attending these arrests, have been of the most uncommon kind. It is said that all intercourse between one of the prisoners and his family and friends, was cut off, and that not a soul, except military men, was suffered to approach him; that, after being detained under close military confinement for nearly two weeks, he was transported, by the way of Baltimore to this city, and that, upon his arrival here, he was informed that there was no evidence to support any charge against him whatever. But whether this man, or the others who have been arrested, are guilty or not, it can have no influence upon our deliberations at this time. For, if even these violations now affect only the guilty, they may, at the discretion of the military officer, be extended to the innocent. It is enough for us to know that the rights of personal liberty, guarantied by the constitution, have been openly violated in the person of a citizen of the United States, and that no laws exist sufficiently effectual to prevent or punish such violations. It then becomes our duty as faithful guardians of the public rights, to interpose our authority in order to preserve them. But, if we content ourselves with tamely looking on, while our best rights are trampled upon, we become partakers of the guilt by the encouragement which we give the offenders. For these violations, what remedy has the most innocent individual against the officer who arrested and transported him? As the laws of the United States have provided none, his remedy is at common law. He must sue for false imprisonment, and it depends entirely on the jury to say whether they will give him any thing or nothing. Can a remedy so uncertain prevent the offence? or, will a remedy so precarious, always remunerate the injured? But, if to this we add exemplary penalties, we have, surely, an additional security that the laws will be obeyed. The laws are not, and in my opinion will not be sufficient, unless they punish in the most prompt and exemplary manner all judges who refuse to grant the writ of habeas corpus, and all officers who refuse to obey it. For such offences, ruin ought to stare a man in the face; and, when he has so seriously abused his power, he ought to be stripped of it forever. But, if we have no laws to guard us against these abuses, and are unwilling to make any, we take upon ourselves all the responsibility of future violations.

Mr. BURWELL said he had determined to vote for the reference of the resolution, that the mover might suggest any additional security to the personal liberty of the citizen he thought necessary, although he did not believe a change in the law material, or that one essential provision had been omitted. Had the gentleman from Delaware confined his remarks to the subject of his motion, and avoided observations unconnected with his ostensible object, he should have acquiesced silently. The Constitution of the United States recognizes the writ of habeas corpus, without determining in what manner it shall be enforced in the courts. That can only be ascertained by recurring to the acts of Congress in 1789, establishing a judicial system, organizing courts, and fixing their powers. The fourteenth section of that law relates to this writ, and says: “This and all other writs not specially provided for by statute shall be issued agreeable to the principles and usage of law.” Mr. B. contended the principles here alluded to could only be those of the English law, and the usages those of their courts; otherwise there could not be found in the constitution, or laws of the Union, a single sentence relative to the subject, and the decisions heretofore had in our courts would be consequently illegal. He said he was fully justified in this position by the uniform proceedings in the courts, and particularly those which had recently taken place in this district before the court acting expressly under the laws of Congress. To show how ample the provisions were, he referred to Blackstone’s Commentaries, vol. 3, page 137, statute Charles 2d, “Any prisoner may move for and obtain his writ of habeas corpus, &c., and the Lord Chancellor or judges denying the same on sight of the warrant or oath, that the same is refused, shall forfeit to the party grieved, the sum,” &c. The judge is here compelled, under heavy penalties, to afford relief to all persons who apply for the writ, and we shall presently see the law guard against delay or evasion by further limitations on the discretion of the judges. Mr. B. said he admitted the specific penalties of the statute did not attach to the judges and courts of this country; but it established their duties, and the punishment inflicted is regulated by the Constitution and law of the United States applicable to judicial offences and misdemeanors. The same statute provides, “that officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent a copy of the warrant of commitment within six hours, or shifting the custody of the prisoner without sufficient authority, shall forfeit,” &c. In addition to this, the court could enforce its process by attachment, fine and imprisonment, and call on the Executive for aid, if resistance is made. Mr. B. said this statute was considered as having completely guarded against oppression, and was expressly intended to put an end to the evasion of the judges: “The oppression of an obscure individual gave birth to the famous habeas corpus act, 31st Charles 2d, which is frequently considered as another magna charta of the kingdom, and by consequence and analogy has also in subsequent times reduced the general method of proceeding on these writs, and (though not within the reach of that statute by issuing merely at common law) to the true standard of law and liberty.” Black. Com. 136. What more is requisite? Your courts are compelled to issue process and grant relief; your officers to carry it into effect, and your citizens to obey. Mr. B. observed, it appeared to him impossible to devise additional provisions, when those already incorporated into the jurisprudence of the country by the act of Congress, and exercised by the courts, embrace every case arising under the laws, and extend to all persons confined under the authority or color of authority of the United States. He, however, was not a professional man, and was therefore the more disposed in favor of the commitment, lest he should be mistaken in his impressions. If the gentleman from Delaware should discover any salutary alterations, he should not only receive his vote but his thanks.

The gentleman from Delaware says, the late arrests at New Orleans by the military are early warnings of the danger of standing armies. Mr. B. accepted the hint, and hoped the gentleman would himself recollect and profit by it. Those who acted with him had long been partial to those establishments, and blind to their tendency. The events alluded to proved the indispensable necessity of preserving them subordinate to the civil authority. This proved the importance of reducing the standing army to the lowest point compatible with the safety of the frontiers. This was the reason which induced him during the present session to vote against the proposed augmentation of our forces; and while he continued to entertain his present opinions, and felt his present jealousies of a conflict between the civil and military power, he was determined to avoid the issue by keeping the latter in complete subordination. If an opposite policy should ever become ascendant in this country, the measures at New Orleans, instead of being temporary, will be entailed upon us. Mr. B. said he thought it improper to mention the events which had occurred at New Orleans. It was extremely probable prosecutions would be commenced against the officer, and any expressions of disapprobation in that House would give a tone to public opinion which justice required should as yet be suspended. Every person admitted the Commander-in-chief had violated the law. He admitted it himself, and assigned reasons of justification which we ought not to decide, but leave to the courts of justice. They are the proper tribunals to punish those who infringe the rights of the citizen; and until they are closed by power, or their decrees set at defiance, and the Executive unable to enforce them, legislative interference cannot be necessary. It has been said, every officer who refuses to obey the writ of habeas corpus from a court should be punished with death; and this has been proposed as an effectual provision to secure the benefit of this writ. Has the gentleman so soon forgotten the doctrine advanced on that side of the House, and assented to during the present session, when we were told a military officer knew no law but the orders of his superior; when we were told the contrary was monstrous, absurd, and subversive of all subordination in the army; that they were not lawyers versed in your laws and constitution? Mr. B. hoped he had. But the gentleman from Delaware had run into exactly the opposite extreme, by placing the highest and lowest officer upon the same footing, exacting from both the same knowledge of the law, attaching the same responsibility, and, contrary to every principle of justice and humanity, punishing with the same severity the man who intentionally and knowingly violates the law, and the man who ignorantly commits a breach of duty. It would completely reverse what has been so long and wisely recognized in our criminal jurisprudence. The redress allowed to a man who has been forcibly seized and imprisoned without legal authority under the existing laws, is much more conformable to equity than this mode. It is an offence against an individual’s rights, and should be punished, like all other injuries of a personal nature, by action and recovery of damages, in which the jury will always have a just regard to the rank of the offender, the innocence of the victim, and the wantonness of the violence. They will discriminate between the lawless exercise of power by the Commander-in-chief and the subaltern, who executes what he supposes he is bound by his oath to perform. Mr. B. said the mover of this resolution had expressed more alarm at the situation of this country than was real, or than he supposed was felt by any member of this House. One would imagine that the arrests at Orleans had extended through the whole nation, and that no man was safe from persecution. As far as he had understood, the moment those arrested had reached the United States, they had been turned over to the courts, and every privilege been extended to them. The people of this country can never be in danger while their Representatives remain pure, and are disposed to withhold from the Executive dictatorial powers. Have we not already, during the present session, given the most honorable pledge to our constituents that we are not inattentive to their security, when we rejected the bill to suspend the writ of habeas corpus? Why talk of the lettres de cachet which have issued in France, and of other oppressions in that nation? Our Government is neither actuated by such passions, nor invested with such powers. It is degrading to assimilate the two Governments, and argue from a similarity which does not and cannot exist. The one is composed of responsible agents; the other is despotic, cruel, unrelenting and corrupt.

But we are told that a most daring violation of human right has taken place--that men have been seized in New Orleans and shipped here for trial. Far be it from me to exaggerate or soften these acts. Such as they are, I am willing to trust them to an enlightened community. An officer has undertaken at his own responsibility to seize and send here three persons. Two of them charged on his oath with treason, or misprision of treason, and the third by him believed to be guilty. The first two on their arrival here, were delivered over to the civil authority, and on solemn argument committed on a charge for treason. The other was delivered over to the civil authority also and discharged. No man will say that the conduct of the officer who seized and shipped these persons is legal. He has done an illegal act at the risk of his fortune in damages. Let the law take its course; let the individuals prosecute; let an honest jury put on one side the crime with which they are charged, and on the other, illegal arrest and shipment; let them strike the balance. If they assess damages, and it shall hereafter appear that this was a wanton and unnecessary exercise of power, the officer must suffer. If, on the contrary, it shall appear that the officer had no object in view but the public good, that he did really believe New Orleans about to be attacked by a superior force, and that these prisoners could not be safely kept there, I for one, shall not hesitate to pay the damages assessed against him. Freedom can never be endangered by an act like this, where your laws are suffered to take their natural course without suspension or interruption--where the injured individual can bring before a jury his claim for damages. What more safe, more certain, or adequate remedy can you ask for an injury done to personal freedom, than the verdict of a jury of freemen? What would be the feelings of an honest and independent jury called upon to decide a case like this, where an innocent individual of character had been seized and shipped? The damages would be such as to heal the wounded feelings of the oppressed individual, and to deter in future the commission of such an act. If, on the contrary, strong circumstances of guilt should appear against the individual, the damages would be nothing. The officer must depend on establishing before the community the purity of his motives, and the probable guilt of those on whom he has exercised power in violation of right. If the individuals seized and sent here shall be found to be innocent, I should wish them to recover heavy damages. Under my present impressions, I should certainly, if on their jury, not assess damages. If the charges made against them are well founded, I would as soon give damages against an individual who seized and secured for trial a highway robber. The public officer who knows of the existence of treason; who sees an individual embarked in schemes dishonorable to his country; who believes him aiding an approaching enemy, would deserve to be broke if he did not seize him. On the present occasion the officer has gone further--he has seized and sent them to you. He has violated the personal right of the citizen. If from honest zeal for the public good, he will find a sure protection and shield before an independent and patriotic jury. If the persons are innocent, and have been seized by him to wreak private resentment, or on any motive less pure than the public welfare, his reputation as a soldier is destroyed, and his fortune must be lost in damages. I do not believe, however, that much sympathy will be excited in the public mind, when the people shall understand about what, and about whom, all these clamors have been raised. What is the naked fact? General Wilkinson has seized and sent round to the seat of Government three persons, at a time when he believed New Orleans in danger of being attacked by a superior force. Of these persons, the one is a bankrupt foreigner, charged on oath with being an accomplice of Aaron Burr. The second, a young American, charged also on the oath of your Commander-in-chief, with having disgraced the American character, by condescending to be employed as an agent for corrupting your army; with having actually carried proposals of bribery to your Commander-in-chief. The third, a foreign lawyer, who owes to the liberality of the people of this country his bread. Two of these persons, in good Federal times, might have been transported under the alien law to Botany Bay. But men are now seen in your courts actively denouncing this measure, who voted for and perhaps brought forward the alien law. I mention not this to justify the present proceeding, but to show to the people the spirit in which this resolution has originated. Your Commander-in-chief has been placed in a difficult situation. In daily expectation of an attack by a superior force, and opposed by the whole body of the law in the territory, a man greatly his superior in talents and firmness might have erred. He ought most certainly to have delivered over these persons to the civil authority. Had he done this, however, it is not yet decided where the trial would have been held. The district court of New Orleans has the same jurisdiction with the district court of Kentucky. The Kentucky district court has the ordinary criminal jurisdiction of a district court of the United States, which extends only to offences punishable by fine or whipping, and the whole civil jurisdiction of a circuit court of the United States; so that these persons, if charged with treason against the United States, could not have been tried in New Orleans, and must have been sent here or elsewhere by the civil authority. Thus much for the violation of right which has taken place.

Mr. BIDWELL observed, that on a motion to refer this resolution to a Committee of the Whole, he thought it unnecessary to discuss the merits of the subject at large; since the very object of the commitment was to afford a full and fair opportunity for such a discussion, and for any specific proposition which the mover might think proper to submit. He was in favor of the proposed commitment, but on very different grounds from some of those which had been urged. Whether the conduct of the commander of the army in arresting certain persons who attempted to corrupt him and to seduce the army, to join in a conspiracy against their country, was to be condemned or not, was a question not suitable to be acted on at the present time, and under existing circumstances. If the House were the proper tribunal to decide that point, this was not the proper mode of deciding it, nor the proper time for the decision. No one would deny that the commander of an army or of a post might be so circumstanced that it would be his duty to make a seizure of suspected persons, or perhaps do other acts not provided for by any law. In such a case he must act under a high responsibility, and throw himself upon the justice of his country. On this ground General Wilkinson had professed to act. If his professions should be justified by the real state of facts, he would be entitled to a favorable consideration. But at present it was unseasonable for the Legislature to express any opinion or take any measure. He regretted, therefore, that the gentleman from Delaware (Mr. BROOM) had resorted to this transaction in support of his motion. On general principles, Mr. B. added, he was willing to go into a Committee of the Whole on the subject. The importance of the privilege of habeas corpus was acknowledged by all. The constitution, by restricting the Legislature from suspending it, except when in cases of invasion or rebellion, the public safety may require a suspension, had recognized it as a writ of right, and our statutes had authorized certain courts and magistrates to grant it. It had been, indeed, in some respects doubtful where the authority to issue such writs was lodged. Whether, for instance, the Supreme Court, a circuit court, or the justices of the Supreme Court, out of their appropriate circuits, had that authority, were questions on which not only professional men, but judges themselves, had differed in opinion. Some improvements, perhaps, might be suggested. Although he lamented that the gentleman from Delaware had moved the subject at the present time, while some of the questions involved in it were under the consideration of the judiciary, and that he had referred, in his argument, to the late transactions at New Orleans, of which we have not sufficient information to form a satisfactory judgment, yet he would consent to refer the resolution to a Committee of the Whole, for the purpose of considering such propositions as that gentleman might offer for the amendment of the law.

Mr. EARLY.--Mr. Speaker, the motion, timed as it is, and accompanied by the speech we have this day heard from the honorable mover, has a suspicious aspect and influence upon certain judicial procedures, depending at the present moment within the walls of this building. Is this House willing to suffer such manœuvres to take their proposed course, and to produce their wished-for effect? Are they prepared to interpose the weight of their influence to ward off the infliction of punishment upon traitors, by passing sentence of condemnation on acts which have produced their arrest and confinement? But it is not now alone that this pernicious tendency of the resolution is to be felt. Actions for damages are no doubt to be brought against the Commander-in-chief. Whether the damages which may be recovered, ought or ought not to be made good to him by the Government, must depend upon circumstances yet to be developed. That he has violated both law and constitution, is not denied. But whether there existed that imperious necessity for such violation which alone can justify it, and give him a claim upon the Government for the damages to which he may be subjected in consequence thereof, can only be determined upon a full view of all circumstances. Here presents itself another strong objection to the resolution. Its tendency is to procure now that expression of opinion by the National Legislature, in relation to the events at New Orleans, which will, which must, raise a powerful obstacle hereafter, against a remuneration of any damages that may be recovered against the Commander-in-chief. To this I will not consent--against it I hold up my hands, and enter my most solemn protest. There is still a farther objection; the tendency of the resolution, if adopted by the House, will be to influence the amount of damages which may be assessed. Yes, sir, it will be viewed as the expression of an opinion on the part of Congress as to the demerits of the act for which damages are claimed. The effect upon the minds of a jury is even more to be dreaded than that upon the opinion of the judges. Who is there that cannot perceive its force? Who that must not deprecate its effect? If it should be observed that the resolution itself cannot be open to all the objections now urged against it, let it be recollected that the honorable mover has taken special care to give to it a direction, and accompany it by circumstances which must insure to it the operation complained of. In ordinary cases there can most certainly be no objection against an inquiry after defects in any branch of law, with a view to the application of some remedy. But such is not, as I apprehend, the state of the present question. Admit, for argument’s sake, that a defect does exist in the present provisions for securing the habeas corpus privilege, can an adequate remedy be now applied? It cannot, we know it cannot.

But, Mr. Speaker, where is the proof that the provisions now in force are not sufficient for the security of the person? Have you any evidence to this effect? If you have, I am ignorant of it. Are not the courts of justice open? Let the persons injured resort thither. Let their complaints be laid before an American jury. Will not an adequate redress be had there? Are the people of the United States too insensible of the value of the privilege of the habeas corpus to award damages proportionate to the injury sustained by its infraction? Or is it that gentlemen suspect, that the individuals who have been arrested were engaged in a plot so diabolical that a jury would, upon a view of the whole ground, assess damages too inconsiderable to comport with their wishes? Is it for this reason that the American Congress are asked to prejudge the case, and to throw their weight into the scale against an officer who, from every thing that yet appears, has acted from motives of the purest patriotism? The part he had to perform was one of the most arduous ever assigned to the lot of man. Entrusted with the defence of an important and extremely remote point, where all was to be done before instructions could be received from his Government, every measure was to be taken by his own judgment and upon his own responsibility. His chance of information as to the extent of the danger was extremely limited, and, so far as facts have come to light, he had powerful reasons for believing that the conspiracy was deeply laid--that it had diffused itself extensively in the very bosom of the country against which it was directed, and that it would be supported by a military force far more numerous than any he had at command.

Mr. BROOM.--Mr. Speaker, I confess that the opposition which this resolution has met with does surprise and astonish me, and more especially when I consider the quarter from which it comes. That those who have been the most clamorous about the rights of the people, who have been jealous in the extreme of even the lawful exercise of power, who have assumed to themselves almost the exclusive privilege of protecting our rights, should now refuse even an inquiry whether those rights cannot be better protected, is to me a problem which I cannot solve, unless I suppose that these were principles and professions intended only for opposition, but never as the guide of administration. But when the principle is avowed that no laws shall be enacted for better securing our personal rights, and that no inquiry even on the subject shall be made at this time lest it might cast a censure on the conduct of an officer who violated them, I consider it my duty to protest against it. Sir, is it come to this, that when the Commander-in-chief of the Army of the United States shall turn his arms against our constitutional rights, that we shall not provide against future violations for fear of exciting a prejudice in the public mind against the officer? Prostrate indeed must be our condition when we can see our great rights of personal liberty trampled upon by a military commander, and be deterred from legislating lest the punishment of future violations should be construed into the murmur of disapprobation of the past! For my own part, I deprecate such a state of things, and, in spite of party, trust that the highest legislative body of a free people will not be found so unfaithful to themselves and their country as to give it their sanction.

The Message of the President, of the 22d of January, informs us that two persons have been seized at New Orleans by General Wilkinson, and embarked for ports in the Atlantic States, and promises that, upon their arrival, they shall be delivered over to the custody of the law. General Wilkinson states that Mr. Bollman, one of the persons so seized, was required by the superior court, but that he got rid of that affair under the usual liability for damages. Another message informs us of their arrival here, and that measures are taken to hold them in custody. These facts warrant me in saying that, in defiance of the Constitution of the United States, persons have been seized by military authority; that they were demanded by the civil authority; that the military refused to deliver them up; and that they were transported under military guard, and by military authority alone, to this city, and that here the first steps were taken to put them into the custody of the law. Is it possible that we can shut our eyes upon these transactions, or reconcile it to ourselves to become the mere passive spectators of this violent usurpation of power? What excuse can any man render to his country for his supineness, in case of the commission of future violations? Can he plead his ignorance of what is officially communicated to him? Or can he say he was not warned of the dangerous consequences of these measures, or of the insufficiency of the laws to prevent them? The whole country know the fact, and deprecate the consequences, and they know also that we have received official information of them, and they look to us, as their Representatives, to use every means in our power to prevent the recurrence of them. Can any man be willing that his right to personal liberty shall depend on the will of an executive or military officer? If he can, he does not deserve to possess the right, and is well represented by those who refuse to protect it.

In speaking of probable cause of arrest, I confined my observations to the case of Mr. Alexander. I have seen no message informing us of the particulars of this case, but it is said that this gentleman, in his professional character, moved the court at New Orleans for a writ of habeas corpus, for one of the persons arrested by military orders; upon the refusal of the General to obey the writ, he either moved, or was about to move the court for an attachment against him, and was soon after arrested by order of the General, and transported to Fort McHenry, at Baltimore; from thence he was brought to this city, and taken before a judge of the Territory of Columbia, where he was informed that there was no charge against him sufficient to warrant his arrest, and he was accordingly discharged.

I now put it to the candor of gentlemen to say whether in this case there was any probable cause of arrest, or whether the same outrage might not be practised upon any other citizen of the United States upon the same principle, by the commander of any fort or garrison; and I will ask, also, whether the General might not as well have sent him to California, or Nootka Sound? For he was not charged with any offence upon which he was liable to arrest. If we have constitutional privileges, we must be always ready to protect them; and if the privileges now violated are not worth protecting, where are we to make the stand? When we see a cancer even in the extremities of the body politic, we must apply the knife, or the caustic, or it will reach the vitals. There ought to be no temporizing; for it will become the more inveterate and confirmed, the longer we delay. Without the most prompt attention to the preservation of our privileges, we may have the form, but we shall not long have the substance of a free Government; and of all Governments I think that the worst, where the sound of liberty supplies the place of the reality, and a thousand petty tyrants take shelter under the cloak of republicanism.

It is said these men could not be tried at New Orleans; it is not material to involve in our discussion this question; for if they could not be tried they might have been imprisoned there, until they were transferred according to law to the place where a trial could be had; but it can never be justifiable in a military officer to seize and deport to any part of the United States, any citizen whom he might suspect of guilt. If it were admitted, an officer might carry a man from place to place until he found judges and juries disposed to convict--the constitution to the contrary notwithstanding. General Wilkinson’s zeal may have been sincere and his motives pure, and the pressure of circumstances such as to make him feel justifiable in his conduct; but, sir, we never can with safety entrust such unlimited discretion to any military officer; and such conduct, however innocent the motives, ought to be guarded against by the most severe laws. The second objection of the gentleman from Massachusetts is, that the laws are already sufficient. They surely have not been effectual to prevent the abuse of the privileges of habeas corpus. The writ was issued at New Orleans, and General Wilkinson in open court took upon himself the responsibility of refusing to obey it. The writ was issued at Charleston, and the officer refused to obey it, and the military continued in possession of their prisoner until they arrived at the place of their destination. The people of England never considered the writ of habeas corpus perfectly secure until it was strengthened by the statute of Charles.

Mr. JACKSON had hoped that the gentleman from Delaware would have contented himself with professing his regard for the rights of the citizen, and not troubled the House with the long speech which he had delivered on the occasion. Mr. J. said it gave him alarm to find such sympathy for men guilty of the most atrocious crimes. Treason in some countries may be an act of magnanimity, but here it is the worst of all crimes, because it aims at the destruction of the best Government and the happiest society in the world.

Mr. J. proceeded to observe that if any officer will violate the constitution and take the responsibility, it is in vain to make laws in order to prevent it. But were there no circumstances to justify Wilkinson? He saw treason lurking on every side. There are cases in which necessity affords a complete palliation. The President’s Message does not confirm the declaration of the gentleman from Delaware, that there were no grounds for a charge against Alexander. [Mr. J. here read Wilkinson’s affidavit.] Does it not show that they are all linked together? Wilkinson believed, and no doubt justly, that these persons could not be safely imprisoned at New Orleans. When it appeared that the judges, at least one of them, was desirous not to oppose the treason, it would have been madness in the extreme to have left the traitors there, and especially when it was expected that Burr would soon arrive with a powerful force.

The relief for abuses of the writ of habeas corpus is in trial by jury. This is the best relief. But the violator is also liable to impeachment, and is amenable to the Government. The outrages spoken of have a remedy--the privilege of the writ is amply secured; if the constitution has been broken, a law would also have been broken in the same circumstances. Mr. J. then concluded by announcing his determination to vote against the reference of the resolution.

Several members were rising to speak, when an adjournment was moved and carried--yeas 60.

WEDNESDAY, February 18.

Writ of Habeas Corpus.

The House resumed the consideration of the motion of Mr. BROOM, depending yesterday at the time of adjournment.

Mr. ELLIOT.--Mr. Speaker, gentlemen have generally been disposed, and I think with propriety, to consider the subject in two points of view. First, to examine the merits of the proposed resolution upon general principles, abstracted from all connection with events that have occurred, either recent or distant. Secondly, to consider the propriety of exercising the supreme legislative power, to preclude the recurrence of events which have sacrificed for a time “the holy attributes of the constitution,” to borrow the language of the great violator of the constitution himself, at the shrine of military power.

Upon the first point, gentlemen who have expressed their sentiments, have been unanimous, or nearly so, in declaring that legal provisions of the kind now contemplated ought to be made, at a proper time, if those now existing are insufficient and inoperative. Those who have told us that the British statutes upon the subject of the writ of habeas corpus are in force in the United States, or even that it is doubtful whether they are so or not, need not have told us that they are not professional men; it was a work of supererogation. No professional man could for a moment entertain the idea that the statutes of Great Britain are laws of the United States. The question may be considered as undetermined, whether the common law of England, or any part of it, which has not been expressly recognized by our constitution and statutes, is law in the United States, considered in their federal character; it is at least well known that upon that question, a unanimous opinion does not exist in the first judicial tribunal of our country. For one, I do not believe that the United States, as the United States, possess any code of common law. I know of no laws of the Union but the constitution and statutes. That constitution and those statutes have recognized, or rather referred to certain portions of the common law, and particularly to certain technical common law terms and rules, as rules of practice in the federal courts; and beyond those the courts have common law powers. At all events, we have not adopted any of the British statutes, and particularly, and by mere implication too, statutes highly penal in their operation. The doctrine is too absurd to be countenanced, upon serious reflection, by any man of common discernment. The constitution has declared that “the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of invasion or rebellion, the public safety shall require it.” But neither the constitution nor your laws have made it a positive duty of the courts to issue the writ in any particular case; still less have they secured the performance of that duty by any penal sanctions. Can it then be improper to provide means to coerce the courts and officers of the United States in this particular, and to leave to all the citizens, at all times and under all circumstances, such an invaluable constitutional privilege? Very few will deny or doubt the propriety of the measure. But many will say that it is ill timed, and the question of time naturally introduces us to the second scene of discussion.

It is said that it is improper at the present period to agitate the question now under consideration. In my apprehension the objection is a very strange one. The constitution has just been violated by the commander of your army; violated at the point of the bayonet, and in more than one or two of its most essential articles. In addition to the celebrated part of that instrument which prohibits the suspension of the habeas corpus, except by the supreme civil power, in crises of great national danger, several of those amendatory articles which peculiarly secure the rights of the citizen, and the adoption of which, on that account, were necessary to reconcile the majority of the people to the original constitution itself, have been disregarded and derided by a military chieftain. I allude to the following articles, all of which have been violated in most of their essential provisions:

“ART. 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“ART. 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless upon a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

“ART. 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defence.”

It is obvious that most of the privileges intended to be secured by these articles to our citizens have recently been denied to some of them, at the point of the bayonet, and under circumstances of peculiar violence. It may, indeed, be said that the privilege of the writ of habeas corpus was not denied in the first instance; that it could not be said to be suspended until the injured persons were placed in a situation which entitled them to demand it from the judicial power of their country. It is true that, notwithstanding inter arma silent leges, although the laws were silent amid the thunder of arms, and although a thousand terrors hovered around those who dared to exercise their professional duties in support of the constitutional rights of the citizen, a writ of habeas corpus was claimed and obtained; and I had supposed that the very singular return which is said to have been made to the writ was placed on our official files. On searching them, however, I do not discover it; but it has been published in all the newspapers, and a copy of it is now before me, which I will read:

“The undersigned, commanding the Army of the United States, takes on himself all responsibility for the arrest of Dr. Erick Bollman, on a charge of misprision of treason against the United States, and has adopted measures for his safe delivery to the Executive of the United States. It was after several consultations with the Governor and two of the judges of this Territory that the undersigned has hazarded this step for the national safety, menaced to its base by a lawless band of traitors, associated under Aaron Burr, whose accomplices are extended from New York to this city. No man can hold in higher reverence the civil institutions of his country than the undersigned, and it is to maintain and perpetuate the holy attributes of the constitution against the uplifted hand of violence that he has interposed the force of arms in a moment of extreme peril, to seize upon Bollman, as he will upon all others, without regard to standing or station, against whom satisfactory proofs may arise of a participation in the lawless combination.

“JAMES WILKINSON.

“HEADQUARTERS ARMY OF THE U. S.,

“New Orleans.”

Here is a return, not of obedience to the laws, and high reverence for civil institutions, but of disobedience and defiance. The constitution is violated in order to preserve it inviolate! Prostrated in the dust by military power, for the purpose of maintaining and perpetuating its holy attributes. And what great national object was to be accomplished by such extraordinary measures? What necessity could exist of seizing one or two wandering conspirators, and transporting them fifteen hundred or two thousand miles from the constitutional scene of inquisition and trial, to place them particularly under the eye of the National Government, when, if the opinion of the officer himself was correct, it would immediately become the duty of that Government to suffer them to go at large? In regard to one of them, the General was uncertain whether he had committed a major or a minor crime; and the other he explicitly pronounces, as we learn from our official documents, guilty of misprision of treason, at all events a bailable offence. He says, “from the documents in my possession and the several communications, verbal as well as written, from the said Dr. Erick Bollman, on this subject, I feel no hesitation in declaring, under the solemn obligation of an oath, that he has committed misprision of treason against the United States.” Surely it is desirable to provide against the recurrence of scenes of this description. Or shall it be admitted that the whim, the caprice, the passion, or the ambition of a martial chief, may supersede at will the most important checks and safeguards of the constitution?

Mr. J. RANDOLPH introduced his speech in favor of the resolution by observing, that he understood the question before the House to be, whether they would refer to a Committee of the Whole a motion proposing an inquiry whether further legal provision be not necessary to prevent violations of the writ of habeas corpus.

How long it had been the fashion to debate the merits of a subject on a simple motion to commit, it was not material to inquire. He believed it had commenced the present session.

Mr. R. then observed that he would proceed to answer some objections which had been yesterday offered against the resolution, and state the reasons which induced him to support it, come from whence it may. The first objection which he heard was, the quarter whence the resolution came. Permit me, said Mr. R., to remind the House that if those who have been called into public life on account of their professed attachment to correct principles, ever quit the ground of trial by jury, the liberty of the press, and the subordination of the military to the civil authority, they must expect that their enemies will perceive the desertion and avail themselves of the advantage. Can they who thus desert their old principles blame others for assuming the popular ground, which they have abandoned? Whoever stands forward in defence of the constitution, and the rights of the people, shall have my support quo ad hoc.

We have now on our tables official information from the President of the United States, that the privilege of the writ of habeas corpus has been denied and the constitution violated. And will you attend to reports from your Committees of Claims, of Commerce and Manufactures, of Ways and Means, and leave the constitution and the rights of the people to shift for themselves? There is abundant time. Congress can meet again after the fourth of March, and to postpone or delay a subject which affects the vitals of the State on account of a press of private or local business, would be a dereliction of our duty and of our oaths. Away then with such objections.

As to the objection that the subject of habeas corpus is now, sub judice, in the court below, no one thinks of a law which shall have a retro-active operation. I trust in God that no such ex post facto provision will be agreed to as was foisted into the bill which came from the Senate, to suspend the habeas corpus, and which was intended in a side way to cover with a mantle the most daring usurpation which ever did, will, or can happen, in this or any country. There was exactly as much right to shoot the persons in question as to do what has been done.

It has been contended that any measures on the part of this House will give a bias to the proceedings which have been instituted in the courts. Let me ask, what official notice we have of any such proceedings? But disdaining such a shelter, though it has been resorted to on the other side, it is sufficient to observe that a man has only to break the law or constitution in the beginning of a session, and then forsooth you are to be foreclosed from legislating on the subject, because an instance has recently occurred to show the necessity of legislative provision.

Mr. R. said this was the first time in his life that he had heard it asserted that no law ought to be passed to punish any offence, because that offence had recently happened. He hoped he should never hear again such a reason delivered. The Romans, believing the crime impossible, had no law to punish parricide, till a case occurred, which proved their mistake. What would you think of Cato or Cicero rising in the Senate of Rome, and urging such a reason against a law for the punishment of this crime?

In the discussion of this simple motion to refer the resolution to a committee for inquiry, which I should have supposed would have been carried without any objection at all, hints of indemnity, I suppose to try the public pulse, have been thrown out. Permit me to say that bills of indemnity are not known to the constitution. If the time ever arrives when the representatives of the people vote the public money to indemnify those who break the constitution, we shall indeed become homines servile paratos, and fit for any Government and for any state of society, however despotic or barbarous. If ever the minions of the Executive, or the Legislature, whether civil or military, are indemnified for their outrages out of the public Treasury, the constitution must have arrived at its last crisis.

It has been insinuated that certain gentlemen in this House lean too much towards standing armies, &c. Agreed. But in advocating an increase of the public force, my object was to chastise an insolent foe, not to employ it against our own citizens and to substitute it in lieu of the civil authority. My dread of standing armies has been more than a hundred times increased in consequence of the services to which our present little force has been put. From such armies good Lord deliver us!

I hope the committee to whom this subject may be referred will not forget to prevent a man from being embarked on board a shallop, and transported one thousand or two thousand miles for trial. For I have heard a law officer of the United States contend that a man may be arrested in one of the territories, and a trial had in any part of the country, wheresoever he may be brought. If this abominable doctrine be supported by law, it is high time to correct it. The constitution, in an article amendatory, declares that unusual punishments shall not be inflicted. Transportation, even after conviction, is an unusual, cruel, and severe punishment; but here it has been inflicted even before a conviction, and before any trial of the delinquents.

The court of Orleans has the same power as the district court of Kentucky, which is invested with the powers of a circuit court. If the district court of Kentucky has jurisdiction of treason, which no man ever doubted, it follows that the court of Orleans has the same authority.

When the constitution gave to Congress exclusive jurisdiction over a district ten miles square, it filled the friends of liberty with alarm. But no man then dreamed that this blot on the map, this nondescript region, a King’s Bench was to be established for the trial of delinquents against the Government, collected from all parts of the country. The inhabitants of this miserable heath, men held in a state of bondage to which no man would submit, who have no voice in electing rulers of the country, are destitute of the right of self-government--these men are made the judges and jurors to try the freemen of America. Were I on trial, I would challenge the jury. They are not qualified for this office; they are not my peers. The people here must be the tools and expectants of ministerial favor. Let them move in their own humble sphere, but let them never dare to touch a charge of treason.

In the Declaration of Independence, transportation for trial is alleged as one of the grievances imposed by the British Government on the colonies. Now it is done under the constitution, and under a republican Administration, and men are transported without the color of law, nearly as far as across the Atlantic.

I make no profession of sympathy for the men who have been denounced as traitors. I argue on the supposition that they are traitors; there is no need of much exertion in behalf of good men. Attacks on the liberty of the people are, as has been stated before, made always in the persons of the vile and the worthless. But when precedent is once established in the case of bad men, who, like pioneers, go before to smooth the way, good men tremble for their safety.

Mr. R. observed that he would not say much of the Commander-in-chief. The least said, till they knew all, was the best. He had always thought that there were more rogues than one. This business of canonizing and sanctifying men before they are dead, he did not like. In the State of Virginia they had been compelled to change the names of several counties. There was a time in which the name of Arnold might have been preferred, and perhaps there may now be places in the United States which derive their names from Burr.

Mr. R. could not admit the jesuitical casuistry which had been displayed with regard to an oath. If a man breaks the constitution, which they were all sworn to support, punish him. If the violator be Washington, Franklin, or Jefferson, Mr. R. would punish him, and he would also say, that no indemnity ought to be voted for him.

Mr. R. stated at some length the circumstances of the proclamation issued in England to prohibit the exportation of corn, when Chatham and Camden were in the Ministry, and who afterwards refused a bill of indemnity. Mr. R. observed that bills of indemnity were known to the English Constitution, and requisite in the case stated. But Chatham and Camden, though both the known and tried friends of liberty, here abandoned the popular ground, and rested their defence on arbitrary principles, while the wary Mansfield, an old tory and a high churchman, availed himself of the advantage, took up the cudgels for the people, and completely succeeded.

Mr. G. W. CAMPBELL said the first inquiry that naturally presents itself, in discussing this subject, is, what has occasioned the measure to be brought before the House at this time? This answer is given--the conduct of General Wilkinson, in arresting Bollman and others, at New Orleans, and transporting them to this place for trial, under military orders, in violation of the constitution and laws of the Union. Suppose this to be the case, what remedy can the Legislature apply? Does the evil complained of arise from the want of laws to protect the liberty of the individuals and punish those who violate it, or from those laws not being duly obeyed? If the evil arises from a disobedience to existing laws, no act passed by this House can afford a remedy. Those entrusted with the execution of the laws may be stimulated to carry them into effect by this transaction, and to punish the aggressors, but it is no ground upon which this House can act, and no act that we could pass could, in any degree, affect the measures that have already taken place. The principal inquiry therefore appears to be, whether there is any law to punish the commission of such crimes as General Wilkinson is charged with? There can be no doubt on this subject; there are laws in every part of the Union to punish offences. If those persons were seized and carried away without legal authority, or a just cause that would excuse the act, it will be a false imprisonment, including in it an assault and battery--an offence punishable by law in every part of the United States. The offender may be indicted, and, on conviction, fined and imprisoned according to the nature of his offence. He may also be sued by the party injured, and damages recovered in proportion to the injury sustained. This is the remedy afforded by the law in such cases, and it has been considered sufficient to correct the evil.

It has not been pretended that General Wilkinson, if he has acted in the unwarrantable manner stated on this floor, cannot be punished according to the nature of his offence; and it has already been stated that he is liable, if guilty, to be punished by indictment, and be made to answer in damages by civil suit. With regard to the violation of the constitution said to have been committed by General Wilkinson, in not obeying the writ of habeas corpus issued by the judge at Orleans, I may be permitted to observe that this part of the subject does not appear to have been well examined by those who have spoken in favor of the measure. The words of the constitution on this subject are, art. 1. sec. 9: “The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” This provision evidently relates to Congress, and was intended to prevent that body from suspending, by law, the writ of habeas corpus, except in the cases stated, and has no relation whatever to the act of an individual in refusing to obey the writ--such refusal or disobedience would not certainly suspend the privilege of that writ, and must be considered in the same point of view as the violation of any other public law made to protect the liberty of the citizen. In the present case, however, if there was a refusal to obey this writ, it was a violation of an act of Congress, establishing that part of Louisiana where this transaction took place into a Territory, which expressly declares that the inhabitants of the said Territory shall be entitled to the benefit of the writ of habeas corpus, and it is punishable as such; but it cannot be considered a breach of the constitution in any other respect than the violation of any public law made in pursuance of that constitution would be, and of course cannot require legislative interference. With regard to the other three articles of the constitution, to wit: the 4th, 5th, and 6th amendments thereto, said to have been violated by the conduct of Wilkinson, a very brief examination will show that there are provisions by law in every part of the Union to enforce obedience to those parts of the constitution and punish those who violate them. The first of these articles merely declares the right of the people to be secure in their persons, houses, &c., against unreasonable searches, seizures, &c.; and that no warrant shall issue, but upon probable cause, supported by oath or affirmation, &c. The first part of this only can relate to the present case, for it is not alleged that any warrant was issued; and every law existing in society for punishing offences against the persons and property of individuals, is calculated to enforce obedience to this provision. If a man is seized without legal authority or a just cause, cannot the offender be punished? He certainly can--and in what other way could you enforce obedience to this provision? The other two articles before mentioned can certainly have no bearing on the question before the House, they merely relate to the manner in which, and the place where offenders shall be tried--they are directory to the Legislature and to courts of justice; and it is not stated that either the one or the other have acted contrary to their provisions. No attempt to try these persons was made by General Wilkinson; he sent them to this place, they were delivered to the civil authority, and their case is now under legal adjudication. The courts of justice are the proper tribunals to decide, according to existing laws, where they are to be tried and in what manner. We are told, however, sir, it is necessary to make provision by law to enforce obedience to the writ of habeas corpus, to punish those who may refuse to grant it. With regard to the latter case, there is not the least ground of complaint--the writ has not been refused in any instance when demanded. It was issued at New Orleans, and also at Charleston, and indeed it is not pretended the civil authority have on any occasion violated this writ. It has, on the contrary, yielded the most prompt obedience to it in every instance.

If it was made to appear to me that there were not provisions, by existing laws, to enforce obedience to the writ of habeas corpus, and to punish the violations of it, I would be among the first to make such provisions. But this has not been shown, and cannot, I presume, be proved to be the case. In every State, and in every Territory, as far as we are informed, there are laws to enforce obedience to this writ, and to regulate the mode in which it shall be obtained and prosecuted; and, by the thirty-fourth section of the act to establish the judicial courts of the United States, it is declared that “the laws of the several States, except when the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in all cases where they apply.” This provision must relate to criminal as well as to civil cases. You have, therefore, the same provisions, at least, to enforce obedience to the writ of habeas corpus in the courts of the United States, that there are in the respective State courts; and it has not been shown that these provisions are defective in the State courts. Gentlemen have not pointed out an instance in which this writ can be violated with impunity. In every case that can be stated, the aggressor may be punished under existing laws; and that is the only mode in which you can enforce obedience to this writ, or to any law. You cannot prevent, absolutely, the commission of a crime; you can only punish the offender, and thereby discourage others from committing similar offences. You cannot prevent a man, while at liberty, from exercising his physical strength; and you can no more prevent him, by law, from violating the writ of habeas corpus, than you can prevent one man from striking another, or from seizing him, and carrying him away by force. All you can do, in either case, is to declare the punishment that shall be inflicted on such offenders.

The gentleman from Vermont (Mr. ELLIOT) has told us he has not discovered a tittle of evidence to show that the persons have committed treason, and that their crime, at most, can only be misprision of treason. Although we are given to understand that that gentleman is a professional character, I must beg leave to differ with him on this subject. If treason has been committed by the author of this conspiracy, those persons, if guilty of any crime, must be guilty of treason, and not of misprision of treason only. They aided and abetted in carrying into effect the project. They carried and delivered a letter, knowing its contents, from the principal conspirator to General Wilkinson, for the purpose of engaging him to join in this undertaking. They used their influence to corrupt him. These must be considered overt acts, giving aid and comfort to the enemies of the nation, and will make them principals in the treason, if such a crime has been committed; for, in this crime, there can be no accessories--all who are concerned are principals. Misprision of treason is a distinct and separate offence. It is merely the neglect or omission to make known to the proper authority the treason that has come to the knowledge of the party. It supposes that no act has been done by the party charged; that he has given no aid or assistance whatever to the enemies of the country, but has merely acted wrong, mistaken his duty (which is the meaning of the term) in not discovering, in due time, the acts of treason that have come to his knowledge, and is, on that account, guilty of high misdemeanor. It was not, however, my wish, or intention to give any opinion on the merits of this case. I am willing to leave it to the decision of the constitutional tribunals. But, gentlemen seem as if they were determined to discuss the guilt or innocence both of General Wilkinson and the prisoners. This I consider altogether improper, as it might give an undue bias to the public mind on this subject. For this reason also, sir, I am opposed to referring the resolution to a select committee.

Mr. HOLLAND.--It is said by gentlemen, that, by the conduct of General Wilkinson in sending Bollman and others from Orleans to this city, there is a flagrant violation of the constitution, and a crime committed that should be punished as a felony, and the purpose of making an offence of this kind a felony is the object of the present motion. That these persons may have been deprived of certain rights secured by the constitution is a possible and probable case; for every illegal deprivation of right secured by law under the constitution, may be said with equal propriety to be a violation of the constitution. But, sir, so far as respects the habeas corpus, the suspension of it applies to the Legislature, and not to persons. The constitution says it shall not be suspended but in case of rebellion, or when the public safety requires it. This prohibition manifestly applies to the Legislature, and not to persons in their individual capacity. If, therefore, the Legislature suspend the habeas corpus when there is no rebellion, or when the public safety does not require it, they would be guilty of a violation of it. But how has General Wilkinson violated it? He has no power to issue or detain the writ. The issuing of the writ of habeas corpus is the duty of your judges, and they have in all cases issued the writ. It was issued in the present case at Orleans; and issued at this place in behalf of these men. Your judges have at all times in this particular been ready to do their duty. And if so, where is the necessity of coercing them, as proposed, by fines and penalties? Sir, the necessity does not exist. If General Wilkinson has disobeyed this mandatory writ, he stands in contempt, and your judicial courts have already power to punish contempts. If he has violated any law, he is liable to be punished. If he has deprived any persons of their rights secured by the constitution or by the law, he has done it upon his own responsibility. The laws are ample, and will give redress for every injury. Let these persons bring their actions, and if it should appear that they are innocent, and that the General has wantonly deprived them of their rights, an honest jury will give exemplary damages; but if on trial it should appear that they were guilty persons, and that the public safety required their being transmitted to this place, they will not, they ought not, recover a single cent.

Mr. ALSTON said this proposition is brought forward in a most imposing shape, and it is undoubtedly one to which no one would object, if brought forward at a proper time, if there were not questions depending on which it is calculated to operate, and if there existed the least probability of any thing final being done upon it, before the close of the session. The inquiry is proposed to be made by a select committee; the mover of the resolution will of course, according to the mode of proceeding in the House, be chairman of that committee, and the report will in all probability be made at too late a period of the session, to admit of a full discussion, and an effect be produced by the report very different from that which would result from a full investigation of it. May not its effect be, to cover a decision which the gentleman knows is about to be made? To make it appear that those who make that decision have the voice of the people with them? The first course proposed, of submitting this proposition to a Committee of the Whole, had a tendency to produce an immediate investigation of the subject; an agreement to the present course will have the contrary effect, of delaying it. This proposition really presents a strange appearance. Gentlemen, heretofore the vehement advocates of energetic measures, are now converted into their opponents. This, however, is not strange to an accurate observer of human nature; opposition is opposition still, and let it come from what quarter it may, the general clamor is a regard to the liberty and rights of the citizen. But surely this of all species of protection is the strangest! The protection of men engaged in violating the rights, the liberties, and constitution of their country! Any judge, says the gentleman, who shall dare to refuse to grant the writ of habeas corpus, or officer who shall refuse to obey it, shall be mulcted in heavy damages. What does this amount to? If any person shall even see treason committed before his face, or Aaron Burr marching at the head of the marine corps, he shall not dare to arrest them; but shall, in the first instance, go before a judge, or render himself liable to be mulcted in heavy damages.

Mr. J. RANDOLPH.--Where are we? Are we in the Congress of the United States? Is this the House of Representatives of this Union, and are we to hear on this floor the doctrine advocated that a flagrant violation of the constitution is to be remedied by an action of damages as in a common assault and battery? Is it possible that such can be the idea of this House; such our respect for the constitution, for the institutions we are all sworn to support, and which, if we do not support, whether our treason be committed under the banners of Aaron Burr, or under the cover of law, we are equally traitors? Is this House ready to sanction the doctrine that an open and avowed contempt of the civil by the military authority, shall be considered as nothing more than a common violation of law? A refusal to respect the writ of habeas corpus by a civil officer, is a high misdemeanor. Much more is it a misdemeanor, when committed by a military man, and more especially if committed by the commander-in-chief of an army. With regard to plots and plotters, conspiracies and conspirators, I am not their friend. If they exist, I would deal with them according to law, I would give them sheer law; they should have no more at my hands. Do gentlemen, however, pretend to say that you can proceed against a man otherwise than according to law? I stand here as the advocate of the law. Laying aside the question of guilt, I say proceed according to law. If you do not do this, you may first incarcerate a man, and afterwards summon a venire to try whether the act is justifiable. It is said dead men tell no tales. I will put a case. I will suppose Aaron Burr a conspirator against the United States; a traitor. Let him die. If so, I would hear the sentence pronounced with pleasure.

But suppose another thing--suppose a conspiracy has been going on for several years; suppose a person has been for several years concerned in it, and to cover himself from suspicion he outherods Herod, and because his weak nerves cannot endure the sight of a traitor stabs him. Is this to be justified? It is well known that a conspiracy to separate Kentucky from the Union is no new thing, and no zeal which any man concerned in it may now manifest can throw off suspicion from his shoulders. These are the plain facts.[49]

I will put another case. If a man charged with a crime committed in a territory can be carried to a territory two thousand miles distant by a military guard and there tried, what is the situation, Mr. Speaker, in which you stand? You yourself may be arrested; for you are in a territory, and the little remnant of the army here may be charged to carry you to New Orleans. Your privilege will not extend to felony or to a breach of the peace.

I will put another case. A member of this House may be carried to the marine barracks. You may issue your writ, and your Sergeant-at-Arms make return that the member is carried to Orleans; and as accidents will happen, he may be knocked over by the boom, and there is an end of him. Will you sit down contented with such a doctrine, that the civil authority shall be put at defiance by the military, and the citizen shipped off to New Orleans, there to be tried by a dependent tribunal?

I avoid saying any thing as to plots. I have no doubt, however, of this plot, and I have no doubt of the existence of a plot also in 1788, and down to the year 1795. But in what way has every free people become slaves? The common recipe is--take a quantum sufficit of plots and of military force, always kept ready for the purpose, and the end is accomplished; and I say this must, if you give sanction to such acts, be the death of your Government. Has any revolution taken place in the affairs of France, which was not preceded by a plot? Are we sure that time and chance, which happen to all men and all nations, may not happen to us?

One word on the subject of the quarter from which this motion comes.

An attempt is made to sound the tocsin, and to discipline the House under the banners of party, on a constitutional question. Where the violation of the constitution is not pretended to be denied, it is expected that the House is to be rallied under the banners of party. The gentleman who brings forward this proposition is charged with the sentiments he entertained some years since; but it is the misfortune of this argument that it cuts two ways; if you resort to the sedition law, the alien law, and other acts of those days, you have no right to refuse gentlemen now the benefit of their principles. The people of this country, after two or three juggles of this kind, will be apt to conclude that federalism or republicanism depends on being in or out of the Government; that those who are in are good federalists, and those out republicans; they will find this out, if they do not suspect it already. A few such instances, and the scales will fall from their eyes. You quote the most detestable instances of a violation of a law which have taken place in time past--no, this is the most detestable of all--and yet you gravely tell the people that you will not listen to men who advocate rights thus infracted. The people of the United States will eventually listen to them, if you pursue this course; and it is because I do not wish them to listen to them, that I do not wish to see them foremost in such a cause as this. It is a disgrace to the old republican party, if indeed it is yet in existence, that the writ of habeas corpus should find its first defenders in that quarter. There is on this subject one melancholy fact, and that is--that in 1797 the federalists were in a majority; in 1807 the republicans are in a majority--has the generation of 1798 passed away? No; the same people that were in 1798 federalists are in 1807 republicans, and that is the clue to the thing; all those who swim with the tide come over to the stronger side.

In my mind it is high time to make a provision for a complete casus omissus of power delegated by the constitution. You have found members this session voting to make a violation of a provision of the slave bill death, on the broad principle of natural right; and yet would you do less for a violation of the liberty of your citizens, when you are bound to protect them, not only by natural right but by conventional institutions and your oath? If a military man should take, I will not say a member of this House--but any one of the miserable citizens who inhabit this place--and escort him under military guard to New Orleans--I say the military man who would do such a thing ought to be precipitated from the top of the Capitol. I would teach the military that they are to be subordinate to the civil power, and that if they undertake to violate the civil institutions of their country, they should pay the penalty of their lives. If you do not guard the people from such an excess of military power, the time will come when you will be kicked out of doors at the point of the bayonet. We have seen the Legislature of a nation as enlightened as ours, treated in this way. There is one institution on which I fear we have placed too great a reliance. I have been always attached to the press, and desired to see it free and unfettered; and I have gone uniformly with those who supported this opinion, even in the time of alien and sedition bills, and not merely in a period of sunshine. Experience has proved to us that the press in the hands of a tyrant may become one of the firmest supports of his authority; and if there shall be a collision between the press and the bayonet, it needs no prophetic spirit to say which will kick the beam.

Mr. M. WILLIAMS said he would state one or two reasons why he should vote for committing the resolution. As he understood the subject, the only consideration at present was, whether it was necessary to make an inquiry into the expediency of amending the laws on this subject. It had been endeavored to make this a party question; he considered it of no importance from what quarter a proposition came. If he thought it right, he should vote for it. The gentleman from Tennessee has observed that the constitution has made an ample provision on this subject. It appeared to him that the constitution had only secured the writ of habeas corpus; no penalty had been attached to its violation, and hence the necessity of some legislative provision to answer this purpose. The same gentleman has observed, that there is no necessity for legislative provision, as the statute book is already crowded with cases; but, Mr. W. said, he believed there was no legislative provision for the violation of the writ under the authority of the United States. It had been also said, that a provision under the Government of the United States would abridge the rights of the States; but, Mr. W. said, he could not see how this remark applied. He did not wish for any abridgment of those rights. The States undoubtedly had a right to pass laws relative to the execution of the writ within their jurisdiction, and Congress had a concurrent power to regulate it under the jurisdiction of the United States. Mr. W. said, in his mind many arguments had been urged which were irrelevant; such as the conduct of the commandant at New Orleans, and of the persons brought before the court. It had been said that this was an improper time to bring the case before the Legislature; but, gentlemen would find that new cases had very frequently given rise to new laws; and the present case clearly showed the necessity of some new provisions. Whether the persons implicated in this conspiracy had committed treason or not, was not the inquiry; the only question was, whether any further legislative provision was necessary to secure the writ of habeas corpus. He would ask, whether in this instance the constitution had not been violated by the interposition of the military authority? Whether the persons arrested were guilty or not, was not for the House to say. Mr. W. said he did not think that the reference of this resolution would have any influence on the court; as an injury by the House would impose censure neither one way nor the other.

TUESDAY, February 19.

Writ of Habeas Corpus.

Mr. BIDWELL.--The motion, as now amended, embraces two objects: to provide additional penalties for the security of the privilege of habeas corpus, and to define the powers of the Supreme Court as to issuing writs of habeas corpus. It is proposed to appoint a select committee to inquire into the expediency of making these provisions. Each member of this proposition is expressly predicated, by its mover, upon particular recent occurrences; the one, upon the conduct of General Wilkinson, in seizing certain persons at New Orleans, and sending them to the seat of Government, under military arrest; the other, upon the late determination of a majority of the Supreme Court to exercise jurisdiction in a case of habeas corpus, for the discharge of some of those persons. With respect to both of these objects, and also as it respects the propriety of referring the question to a select committee, I am opposed to the motion, and hope it will not be adopted.

But, sir, is it necessary or proper, if we had leisure, to pass a law on the subject, at the present time? The principal argument in favor of it has been drawn from the recent transactions at New Orleans. We have been told that the constitution has been violated, and that Congress ought to act on the occasion; otherwise, we may become familiarized to encroachments on the constitution, until all respect for that sacred instrument may be lost. Sir, this argument is a two-edged sword. It cuts both ways. If, for a temporary purpose, the trumpet of alarm is sounded, when there is no real danger; if, by way of appeal to the public, we are urged to legislate upon a suggestion that the constitution has been violated when there has been no such violation, or none but what the ordinary course of law is competent to correct and redress; we may be familiarized to charges of that nature, until we become insensible, indifferent, and disinclined to interpose, when legislative interposition may be really necessary.

For the sake of argument, let it be admitted that a constitutional right has been infringed. Does it follow that Congress ought to legislate on the occasion? Take the instance which, in order to bring the subject home to ourselves, has been put. Suppose a member of this House, in contempt of his constitutional exemption from arrest, except for treason, felony, or breach of the peace, is arrested on civil process, and imprisoned in this territory, or carried out of it, if you please, under arrest; would Congress feel themselves called upon to pass a law, in consequence of such infringement of a constitutional privilege? No, sir. The legal remedies already provided would be sufficient. The party injured might sue out a habeas corpus for his discharge, in the first place, and afterwards commence his action for damages, to be assessed by a jury, upon a full consideration of all the circumstances of aggravation or alleviation; and the officer or person who did the injury would be still further liable to be indicted by a grand jury and tried and punished by the proper tribunal. These, sir, are the existing provisions of law. And I am not willing to disparage the right of jury trial, so solemnly recognized in the constitution, by treating it as inadequate to give relief. It is a privilege by no means inferior to the habeas corpus. It is one, indeed, without which that cannot be enforced. It is a legal and constitutional remedy; and no friend to our laws and constitution will attempt to degrade it. I am not pretending that it is perfect. Imperfection is stamped upon every thing that is human. Courts and juries are not infallible; they are not inaccessible to those passions and prejudices which are common to men in all situations. But they are not more liable to the influence of erroneous or improper considerations than legislatures are. No safer institution than that of trial by court and jury, has been devised to redress infractions of personal rights. It is open to all persons who think they have sustained an injury, and is as free from objection as the lot of humanity will admit.

Has any officer refused to serve a writ of habeas corpus? No such refusal is pretended. Has any person, on whom a writ of habeas corpus, from a court or judge of the United States, has been served, refused to obey it? No instance of such disobedience has been officially communicated to us, according to my understanding and recollection of the official communications. It has, I am sensible, been charged upon General Wilkinson, and, in proof of the charge, a gentleman from Vermont has read, from a newspaper, that officer’s return to a writ granted by the Territorial court of Orleans. For it is to be observed, that the application was not made to the court of the United States there, but to that of the Territory. The General’s return was expressed in the language of a soldier, and not of a lawyer. It did not state, with technical precision, whether Dr. Bollman was within his control at the service of the writ. I may be incorrect, for I have not particularly investigated the subject, and it may not be very material, but I understand the fact to have been, that Dr. Bollman had been sent from New Orleans, on his way to this city, when the writ was served on General Wilkinson. This appears from the further proceedings of the court, as published in the same paper, from which the first return has been read.

[Here a message from the President was received and read, after which Mr. B. proceeded.]

When the message was announced, I was noticing an extract from the proceedings of the Territorial court at New Orleans, which I now beg leave to read.

“In the Superior Court of Orleans, December 26th. In the matter of the Habeas Corpus ad subjiciendum, directed to General Wilkinson, to produce the body of Dr. Erick Bollman; on motion of Mr. Livingston (in behalf of Mr. Alexander, the attorney upon record) that General Wilkinson be required to make a further and more explicit return to the said habeas corpus, or show cause to-morrow morning, at the opening of the court, why an attachment should not issue against him: It was ordered, that the rule be granted, and that a copy thereof be immediately delivered by the sheriff to General Wilkinson. On the next day, on motion of Mr. Duncan, in behalf of General Wilkinson, and on reading the following, as an amended return to the above-mentioned habeas corpus:

“The undersigned, commanding the Army of the United States, takes on himself the responsibility for the arrest of Dr. Erick Bollman, on a charge of misprision of treason against the United States, and has adopted measures for his safe delivery to the Executive of the United States. The body of the said Erick Bollman is now, and was at the time of the writ of habeas corpus, to which this return relates, out of the possession, power, or custody of the undersigned.

‘JAS. WILKINSON.’

“Ordered, That the same be received and filed, and the rule nisi of attachment be discharged.”

The fact is here stated as I have understood it. Dr. Bollman was on his passage to this place, before the writ of habeas corpus, sued out by his friends, was served on General Wilkinson; whose transaction, therefore, in whatever light it is to be viewed, in relation to the laws and authorities of that Territory, was not a disobedience to this writ of habeas corpus, but a military seizure and transmission of a person from New Orleans to Washington, under an avowed responsibility, and upon the principle that it was necessary for the public safety. At any rate it does not appear to have resulted from a want of penalty, or any defect whatever in the habeas corpus laws of that Territory, whose courts and laws, and not those of the United States, were resorted to for relief.

One case has been mentioned in the newspapers, in which a writ of habeas corpus, issued under the authority of the United States, was not obeyed. An officer at Charleston, South Carolina, it is said, instead of producing Dr. Bollman, in obedience to a writ from the district judge, transmitted him to Washington, because the orders of General Wilkinson, in general terms, directed his transmission, without any particular instructions respecting a habeas corpus. The officer seems to have considered it his duty to obey the orders of his commander, without regard to any interfering lawyer or civil process. I am of opinion that he erred, and has exposed himself to punishment, as well as to damages. But his error does not appear to have been wilful, nor to have resulted from any defect in the law, but from an erroneous military principle. The same principle, however, has, at the present session, found very respectable advocates on the floor of this House. Yes, sir, in the case of Captain George Little, gentlemen held that a military or naval officer is not bound to take notice of any law in opposition to, or even in explanation of, the orders of his superior. It will be recollected that I opposed that doctrine, although I admitted that an officer, civil or military, acting contrary to law, through misapprehension of its meaning in a doubtful case, or in some great emergency not provided for by law, might be equitably entitled to indemnification. Damages had been recovered against Captain Little, for doing an illegal act, in pursuance of orders from the late President of the United States, and Congress have passed a law to indemnify for those damages. The Executive orders, under which he claimed, taken in connection with the law, which was referred to in the orders, did not appear to me to warrant the transaction, which has been adjudged to be illegal, and for which the damages were recovered. I did not, therefore, vote with the majority in favor of his claim. But gentlemen who supported it on the ground I have mentioned, will, if they are consistent, be so far from inferring a necessity for further penalties, from the case of Captain Kaltiesas at Charleston, that they will be ready to grant him an indemnification, if he shall be found to have acted honestly, according to his understanding of his orders. By indemnification, I do not mean an act of indemnity, in the British sense of the term, pleadable in bar both to an action for damages and to a prosecution for an offence. Such an act might here be considered unconstitutional and void. A remuneration for damages incurred has been the mode of indemnification adopted by our Government.

On this subject an example has been quoted for our instruction, from English history. It was a proclamation, issued in derogation of law, by the King, with the advice of the celebrated Lords Chatham and Camden, on a great national exigency. The measure was generally approved and applauded throughout the nation. The Parliament were ready to sanction it. But, instead of accepting an act of indemnity, those Ministers undertook to justify it, as legal, upon the principle of necessity. In that they erred. When the question came before the court for judicial consideration, Lord Mansfield decided against the doctrine of his great political rivals, and I think his decision was correct. As a judge or a juror I should have condemned them. But, sir, if instead of justifying the proclamation, as legalized by State necessity, the Ministers had acknowledged their responsibility for it, and thrown themselves upon the justice of their Government, had I been a member of the British Parliament I would have voted them an indemnity. Their error consisted, not in doing an illegal act for the public good, but in doing it under color of legal authority, when the law did not authorize it. Whether General Wilkinson’s conduct has been correct or erroneous in other respects, he has not fallen into this error of those celebrated English statesmen. He has not pretended that, in seizing the persons alluded to and transmitting them to the seat of Government, he was justified by orders or by law. He has not cast the responsibility upon any other officer or department of Government. He has explicitly assumed it all to himself, and put himself on the candor of his country for indemnification. If it shall appear that he has acted honestly, for the safety of the Army and the preservation of the Union, under the pressure of such urgent necessity as he professes, I trust he will be indemnified. On the contrary, if it shall turn out, upon future investigation, that he has acted unnecessarily and wantonly, from motives of malice or resentment, he will undoubtedly be left to suffer the consequences. I give no opinion of the merits of his conduct. I hope the House will not, at present, give an opinion, or adopt any measure calculated to have a bearing on the question. It is premature. We have not sufficient information. We have not a statement of all the facts, nor the evidence in support of the facts, which are stated. In due time an inquiry will be proper, and doubtless will be instituted. General Wilkinson will probably demand it himself. But it would be unfair and unjust, as well as impolitic, to anticipate it.

Mr. QUINCY.--So long as an intention appeared to make this a party question, I had no inclination to intermeddle with it. The subject seems to me to be of too high a nature, and too deeply to be connected with the rights and liberties of us all, to be examined under those narrow and temporary views which party spirit necessarily introduces. Since the discussion has assumed a milder aspect, I shall offer a few considerations; limiting myself to a very simple and brief elucidation of the subject, in a point of view which no other gentleman has taken of it, as yet, on this floor.

I cannot agree with those gentlemen who maintain that in the arrest and transportation of Bollman and Swartwout, they can see no violation of the rights of individuals. The privileges of the constitution are as much the inheritance of the humblest and the most depraved, as of the most elevated or virtuous citizen. To be seized by a military force, to be concealed and hurried beyond the protection of the civil power, and to be sent a thousand miles for trial, in a place where the crime charged was not committed, I humbly conceive are violations of individual rights, and of the constitution. I am not, however, prepared to say, that in no possible case they can be pardoned; nor, with the gentleman from Virginia, (Mr. RANDOLPH,) that in no case, I would consent to indemnify a military commander for making such an arrest. A case might exist when it might be the duty of a legislature thus to indemnify. I agree, however, that it must be an extreme case, and that the party to be indemnified must evince that he had himself no voluntary agency in producing the state of things which made such an unconstitutional exercise of power necessary to the safety of the State. I give no opinion concerning the conduct of General Wilkinson. The events which happened at New Orleans have no other relation to the subject before the House than this: they have turned the attention of reflecting men in this nation to the nature of the security they possess against similar violence; and, in common with other reflecting men, it has become our duty not only to understand the nature of that security, but also to supply, as soon as possible, any deficiencies we may discover in it.

The only question is, Have this people the privilege of the writ of habeas corpus secured to them as fully and effectually as the constitution intended, and as wise and prudent men ought to desire? I answer, unequivocally, they have not. So far as relates to cases under the exclusive jurisdiction of the United States, we have virtually no writ of habeas corpus. And for this plain reason, that we have none of the sanctions of the writ; we have none of those penalties, without which the writ of habeas corpus is a dead letter: particularly in all cases in which the state of party passions, or of any predominant power, leads to the oppression of an individual.

The writ of habeas corpus and the penalties by which it is enforced, and in which the great benefit of the privilege consists, are distinct things in their nature. The former was known to the English common law, and although, at all periods of English history, it was held a very precious right, yet were its provisions found wholly inefficacious against arbitrary power, until after the statute of Charles II. called by Englishmen their second Magna Charta. This statute gave penalties unknown to the common law. If a judge refuses to grant, or an officer refuses to execute the writ, he is liable to a penalty of five hundred pounds sterling, and similar sanctions annexed to other neglects of the precept. The House will observe, that all these penalties are securities given to personal liberty, additional to those which exist at common law, and are not substituted for them. These penalties are annexed for disobedience to the writ, not as indemnification for the injury. All the other remedies against the judge, or the party imprisoning, remain unimpaired.

The question recurs, does the Federal Constitution, by securing to us “the privilege of the writ of habeas corpus,” secure to us those sanctions of the writ which constitute in England its characteristic security? If the constitution had re-enacted the statute of Charles, there could be no doubt. But will gentlemen seriously assert, that a penal statute of another country can, by construction, be declared the law of this, so as to make our citizens obnoxious to its penalties? If that statute be our national law, how was it obtained? Re-enacting statute we have none. And “the United States, as a Federal Government, have no common law,” if we give credit to declarations daily made upon this floor, or respect the opinions of one of the highest law authorities in this nation. I refer to the opinion of Judge Chase, in the case of the United States against Worrall. 2 Dallas, 394.

This view of the subject is certainly sufficient to satisfy this House, that their security for this great privilege is, at least, uncertain; and is not this reason enough, for this Legislature to commence an inquiry into the nature of that security, and the additional provisions it requires? This at present is the only question.

But the gentlemen ask “What need of further penalties? If the judge refuses the writ, is there not impeachment? Against the person illegally imprisoning another, is not an action for damages?” I answer: Both these securities for the personal liberty of the citizen existed, and do still exist in England, as fully as they do here, yet was it ever before heard that these were reasons against enacting that celebrated statute of Charles, or were ever urged as evidence that its provisions were needless, or useless? The penalties of that statute are guarantees of the liberties of the citizen, additional to those which result from the law and the constitution. The principle of that statute is, to rest satisfied with nothing short of the actual liberation of the person from illegal imprisonment, in the shortest time possible. To this end all its provisions tend. It will not leave a citizen to languish in prison, in expectation of the result of the slow progress of legislative inquisition, or for the purpose of ultimately qualifying him to receive a heavy compensation in damages. Impeachment is always a dubious, and an action for false imprisonment often an inadequate security for the observance of the writ of habeas corpus. Great violations of the privilege of this writ can never happen, unless in times of great violence. In such times, what hope of an impeachment against a judge who abuses his authority in coincidence with the views of a prevailing party? And as to damages, is personal liberty to be estimated by money? And if it were, what certainty that the person guilty of the illegal arrest will be competent to pay the damages recovered? In the case of seizure by a military power, can it ever be expected, from the universal pecuniary deficiencies of the soldiers, that damages will be realized, even should the civil arm be competent to enforce an execution?

The penalties affixed by the statute of Charles, on the contrary, assure the obedience of the courts and officers of justice, independent of all party influences which may happen to prevail in the nation, and secure personal liberty by pecuniary perils, suspended over the heads of men, whose situation in society is such as, in general, makes the attainment of the penalty certain, should it be incurred. Upon the whole, those who oppose the present motion seem to me to be reduced to this dilemma; either they must acknowledge that they are content that the citizens of these United States should possess less security for their liberties than the subjects of the law of England enjoy for theirs, or they are reduced to the necessity of adopting the doctrine that the statute penalties of another country may by construction become the laws of this nation; than which, I can conceive nothing more monstrous or absurd.

In this discussion it has been my wish to avoid all notice of the party and personal invectives which have been uttered. The question is too important to be mingled with feelings and passions of these descriptions. And the circumstances of the times and of the nation, seem to me to claim from us a contempt for these local and ephemeral distinctions.

Mr. NEWTON.--I presume I may be permitted, notwithstanding the motion has been tried, to go fully into the subject before the House. I hope this House will not indefinitely postpone it. If ever there was a subject within the attention of an enlightened Legislature, it is the subject before us. Every subject that regards the liberty of the citizen should be received with reverence and respect by the votaries of liberty. If we can better the situation of the people of the United States, and keep from them, under all circumstances, the hand of oppression, it is our duty to do it, and to pay attention to whatever is likely to eventuate in such an issue. I shall not consider this case as the basis of an impeachment. The only true inquiry at present is, whether the writ of habeas corpus is sufficiently fortified by legislative provisions? I will not commit my understanding so far as to decide on the conduct of the Commander-in-chief. If he has done wrong, let him be answerable to the laws of his country; much less will I talk of indemnifying him. For this reason, because the jury before which the case may come, may, under such circumstances, have regard, not to his circumstances, but to the Treasury of the United States.

My friend and colleague, from Virginia, has offered a most important amendment to this resolution. The Supreme Court of the United States, after having this all-important case for a long time under advisement, and after an argument from the bar, are again afloat on the ocean of uncertainty, have started some new doubts, and have asked the gentlemen of the bar to come forward with a new argument. If this is the fact, does it not show the necessity of our attending to the subject; and of some new legislative provisions upon it? I am for defining the power of our courts. I wish to understand the extent of their prerogatives; and particularly whether they have appellate jurisdiction in criminal cases; before whom criminals are to be brought; who are to grant writs of habeas corpus, and admit to bail?

These are all considerations of importance, and constitute the reasons which induce me to vote for referring this resolution to a select committee. But, say gentlemen, we cannot mature this subject this session. Perhaps so; but is this a sufficient reason for not commencing the investigation, for comparing our ideas on the subject, and going forward as far as we can in our progress towards a decision? I, for one, shall always be in favor of an inquiry into subjects that have a reference to personal liberty.

This subject has been spread over an immense extent of ground. The single point, however, at issue, is, whether we will commit this resolution, in order merely to obtain correct facts and information, which shall present the subject in such a form as shall enable us to act understandingly upon it. I am not at present in favor of acting definitively upon it; but merely for inquiry. So circumstanced, I presume our proceedings cannot injure any individuals implicated in this business, as nothing we can do can have a retrospective effect. These are my reasons for voting in favor of the present motion.

Mr. J. RANDOLPH.--There has been a dispute in the world from time immemorial between wit and dullness--between imagination and judgment. So we have been told, though some who cultivate the sceptical philosophy dispute it. But this impression has been so long attempted to be made, that there is not a precise or formal coxcomb that does not on the score of dullness arrogate to himself judgment and profound wisdom. While I am willing to allow that declamation, or the powers of an effervescent imagination, are no evidences of wisdom, the House must admit that the mere dullness of a special pleader without his accuracy does not imply any pretensions to knowledge. The truth is, that on this as on other subjects, it has been my misfortune to come to the House too unprepared. I knew nothing of the subject until it was brought under discussion. I got up yesterday, as I have to-day, to say what first came into my head, and in this way I hope I shall be permitted to go on.

I consider the whole of this business as one of the most unfortunate kind that could have happened to the United States. If we had acquired Louisiana by force of arms or conquest, we could scarcely have inspired the people of that country with greater indignation than by these events--in which it is yet to be seen whether these people are at all concerned; or whether they are not standing like sheep, suffering the wolves to pass without disturbance--events which must sow the seeds of lasting misfortune, unless healed by a timely interposition of the Government. And nothing can have a more fatal effect than any thing done by this House, or the other part of the Government, to sanction the conduct of the Commander-in-chief, taking it to be such as is ascribed to him. As a member of this House I am free to give my opinion of what would restore peace to that country--though out of doors I might not do it. The first step ought to be the immediate recall of every man directly or indirectly concerned in this business. You can hardly suppose, sir, that I look forward to be made their Governor, or desire on my recommendation to introduce a friend to that place. But I have no hesitation in saying that unless some such step be taken, the attachment of that country to the United States is lost for ever. I would take such a step boldly--I would know nothing of their little disputes; I would act with the authority of a venerable parent, who, on returning home, found his children by the ears. I would correct them all, I would discountenance at once all such intrigues--I would recall every man who has directly or indirectly participated, or is suspected of having participated in them--I would, in short, rub out and begin again. It is an extremely unfortunate thing that the people of New Orleans, for the most part speaking the French language, a great part of them attached to the Crown of Spain--transferred to the United States by an honorable purchase--told they were about to taste the sweets of a Government of laws--told that arbitrary notions and lettres de cachet were to be proscribed--that the constitution was not to be departed from, but that they were to enjoy all the blessings of citizens of the United States--it is extremely unfortunate that New Orleans should be the first place in which a lesson of military despotism should be taught. I deem it extremely unfortunate--it cannot tend to attach those people to the United States; it will, however, have another tendency--it will prevent every man of character from emigrating to that country, and instead of mixing the Americans with the French, the latter will be kept as a distinct class. For will any man, having the least regard to his rights, go to a place where he will be seized by a military commandant? Suppose, Mr. Speaker, such a thing had taken place in your country or mine. The military would not at this period be before the court--the spirit of the country would have long since settled the question. I recollect in 1798 or 1799, when the officers of the army were following their legal avocation of enlisting recruits, such was the spirit of detestation in which a standing army was held in my district, that these men were obliged to break up and move off. That spirit would scarcely endure the legal act of a man acting under legal authority, and yet we have now an apology for men acting in direct contravention of legal authority. Will any man point out a good cause for this change?

The writ of habeas corpus is the only writ sanctioned by the constitution. It is guarded from every approach except by the two Houses of Congress; and yet this writ, thus acknowledged, thus specially designated, this second Magna Charta, as it has been called, is to be put on the footing of a common trespass. Really, when a man tells me that if imprisoned I may get damages, it requires no ghost to come and tell us that this may be done even without the writ of habeas corpus. But will gentlemen point to any legislative sanction by which the execution of this writ is guarded? Perhaps action on the case might be sustained for disobeying it; but suppose a judge should deny it. Impeach him, say gentlemen. But will gentlemen rely on that? That affords no certain punishment, and an uncertain punishment is inadequate. We want a certain and adequate remedy.

I stated that I would make a military officer, acting under his own responsibility, acting as commander-in-chief, punishable with death for such an infraction. Did I, in saying so, also say that I would punish an inferior officer with death? Will any man deny that a military character arraying himself against the constitution of his country is worthy of death? I say he is a traitor. A commander-in-chief of an army, who, on his own responsibility, puts the constitution and laws of his country at defiance, is a traitor; and, supposing the case stated at New Orleans to be correctly stated, the Commander-in-chief is as much a traitor as any other man concerned in the conspiracy. Who are these traitors? Burr & Co. What are they about to do? To put down the civil authority by military force; and is there any substantial difference whether the civil authority is trampled under foot by Burr and his banditti, or by a commander-in-chief and his regular army? I will go farther. Suppose these measures for putting down Burr shall eventually prove to have been measures for putting up somebody else, in what will these men differ? In nothing. If the commander of an army, to give himself a false eclat, shall trample the constitution under foot, shall go a certain length with conspirators, and finding his ground no longer tenable, shall determine to make up in zeal what he wanted in fidelity, he is guilty of treachery to the constitution and laws--he is guilty of more--he is guilty of violating the principle respected by knaves--the principle of fidelity to each other.

The gentleman from Massachusetts (Mr. QUINCY) has stated the difference that exists between the right of the writ of habeas corpus and the remedy. He has correctly stated that it is not intended as a remedy--not to allow an action for false imprisonment--but to prevent false imprisonment, and therefore that it ought to be guarded by sanctions. But the gentleman has omitted to mention one circumstance, which is, that in England the writ of habeas corpus is secured by the sanction of death. And is our attachment to liberty less than that of England? I say that a Chief Justice of England for refusing to issue a writ of habeas corpus, may be impeached, taken to Tower Hill and decollated. If there had existed the privilege of the writ of habeas corpus in England at the time of the impeachment of Strafford, could there have been a charge more strong than a settled design to do away that privilege? In England also it is guarded by the power of attainder. Thank God! we have not that feature in our constitution. But if the same spirit pervades that country now which once did, nothing would sooner pass a bill of attainder, through the two Houses of Parliament, than a known and wanton invasion of this privilege. But fortunately our constitution has denied to us this power; and it is because we cannot pass bills of attainder, and because judgments on impeachments do not affect the life, that it behooves us to guard this important principle with some more solemn sanctions than it now possesses.

Mr. J. CLAY said, before the question was taken, he would mention one or two points that went to show the necessity of a reference. He understood that one of the persons arrested by General Wilkinson had been landed on an island near Charleston, and, on the issuing a writ, the officer had refused to obey it. He would ask whether this was not a violation of the writ of habeas corpus that required a remedy by law? Mr. C. said he always viewed it as a matter of regret, that questions of this kind should be taken up on party ground. He considered such a suggestion, on the present occasion, as a mere trap to get a few votes. They were told of the dark times when alien and sedition laws were passed. If, however, under the alien law, men might be deported, gentlemen should recollect that it was according to law--that there was an express statute that justified the measure. Mr. C. said he considered the kidnapping alluded to by gentlemen as a gross violation of the habeas corpus, and would be glad to know whether sending a man to Baltimore from Orleans, was not as gross a violation of principle as sending him from this place to Orleans? Mr. C. concluded by observing that he considered it a very unfortunate thing for any gentleman of talents to be educated at the bar. So many distinctions were there taken, that a man of his plain mind could scarcely see any thing. He should, however, adhere to the constitution, and would ask whether a military arrest was not a gross violation of it; and whether there ought not to be some exemplary punishment to guard against it?

Mr. ELMER said he should vote for the postponement of the resolution. It had been under discussion for three days, and he did not perceive they were nearer a result than on the first day. Was it discreet to refer this resolution to a select committee, when it was manifest they could not go through the business without neglecting important business already before them? He should also vote for the postponement, as, although three days had been taken up in the discussion, he had not heard any one gentleman urge a single reason to show the necessity of any additional provisions. This very transaction, he believed, would ultimately turn out beneficial to the United States, notwithstanding the arts of ambitious men. It would display such a striking regard of the people to the government of their choice, as to prevent any like attempts in future. Mr. E. said he did not know whether General Wilkinson was a conspirator, but in this case he did not see that the constitution had been so flagrantly violated. Take the case of a conspiracy against the constitution, to level and destroy the constitution altogether, and directed towards the garrison which General Wilkinson commanded, in a remote part of the United States, and distant from any strength to support him. If we consider the question in this view, that the lives and property of the citizens were at stake, and even the judges engaged with the conspirators, was it improper to take up these men and send them to a place where they could be impartially tried? Let gentlemen, said Mr. E., pass as sanguinary laws as they please, if I considered the judges concerned, and were satisfied there were conspirators within, I would arrest them, though death were the consequence, and I am persuaded every officer faithful to his trust, would do the same thing. I admit that in all cases, except of the greatest emergency, the military ought to give way to the civil power. With regard, however, to what gentlemen call the audacity of sending these people here, in the face of the legislative body, I confess I entertain a different opinion. In cases of military arrest, I am most afraid of secrecy. Does not publicity, as far as it goes, show a good conscience? Does it not show the wish of the Commander-in-chief that his conduct should be examined in the face of the nation, conscious that, on a full examination, he will appear to have acted as a good officer and an honest man? As I have said before, I do not know that he is honest. I know that he has been charged with being a conspirator, but on this point we have no proof before us.

Mr. KELLY said, in order to obtain a right understanding of the subject, it is necessary to inquire how this inestimable privilege was secured to the subjects of Great Britain by Magna Charta, the great charter of their privileges, which was extorted sword in hand by the Lords and Barons, from King John at Runnymede, and how far the privilege thus secured, was made more effectual by the statute of Charles II., which was called the second great charter of their liberties. This writ of habeas corpus ad subjiciendum, which was secured by this charter, became a writ of right, not less secured to the subjects of that kingdom than the same is secured to our citizens by our constitution.

We are informed by Sir William Blackstone, in his famous commentaries on the English law, that the inestimable privilege of the writ of habeas corpus was of early date in Great Britain, almost coëval with the first rudiments of their constitution. The liberty of the subject could not be abridged in any case without special permission of law, although sometimes impaired by the usurpation of princes and the ferocity of particular times. It was, however, established on the firmest basis by the provisions of Magna Charta, and a long succession of statutes under Edward III., and was recognized by the Crown in several after reigns. And it will hardly be contended that this privilege is better secured to the citizens of the United States by our constitution, than the same was secured to the subjects of the British Crown by the provisions of Magna Charta. Yet abuses had crept into daily practice in England, which had in a great measure defeated this great constitutional remedy. The flagrant abuse of power by the Crown, generally, produced a struggle which discovered the exercise of that power to be contrary to law, or restrained it for the future. An obscure individual gave birth to the famous habeas corpus act in the reign of Charles II., which was justly called another Magna Charta of the kingdom. Francis Jenkes was committed by the Council Board for a turbulent speech made at a common hall assembled at Guildhall, for the purpose of choosing officers. He applied to the then Lord Chief Justice Kaimsford for a habeas corpus, who alleged that he could not grant the writ in vacation. The friends of the prisoner afterwards applied to the Lord Chancellor, who said the king would not grant it without a petition; application was afterwards made to the court of quarter sessions to have him bailed; the court said, there was no such name in the calendar; upon application to the jailer, he said he never returned any man committed by the Council Board. When a copy of the commitment was obtained, the jailer evaded making proof of it by going away, as was believed with the privity of the court; at length, the commitment being established, the court doubted their power to act, when the Lord Chief Justice and Lord Chancellor had refused, the court took time to consider of the application until next term. A petition was afterwards presented to the Lord Chancellor, who also took further time to consider; at length the Lord Chief Justice, upon the matter being suggested to the King, issued a habeas corpus, and the prisoner was discharged. To prevent similar abuses in future was the famous habeas corpus act passed, which regulated the mode of proceeding upon writs of habeas corpus, and fully ensured its benefits and provisions to the subject.

The question on indefinite postponement was then taken by yeas and nays, and carried--yeas 60, nays 58.

FRIDAY, February 20.

Lewis and Clarke.

The House resumed the consideration of the unfinished business of Monday last, on the bill making compensation to Messrs. Lewis, Clarke, and their companions.

The bill grants land warrants, which may be either located or received at the land offices in payment of debts due there, at the rate of two dollars per acre. The bill grants these persons 24,960 acres.

A motion was made by Mr. LYON to strike out so much as permits the receipt of these warrants at the land offices in payment of debts. This was opposed by Mr. ALSTON and supported by Messrs. TALLMADGE, J. CLAY, QUINCY, COOK, LYON, ELY, and D. R. WILLIAMS. It was contended that double pay was a liberal compensation, and that this grant was extravagant and beyond all former precedent. It was equivalent to taking more than $60,000 out of the Treasury, and might be perhaps three or four times that sum, as the grantees might go over all the Western country and locate their warrants on the best land, in 160 acre lots.

A motion to recommit the bill was made, and after considerable debate, was carried--ayes 66.

WEDNESDAY, February 25.

Post Roads.

On motion of Mr. THOMAS, the House proceeded to consider the Post Office bill.

Mr. J. RANDOLPH observed that this was an extraordinary bill, and was passing in an extraordinary manner. It gave New Hampshire, Massachusetts, New York, and some other Northern States, a large number of post roads, and not one to Virginia. It was not wonderful that this subject was pressed on by certain gentlemen. If it would not be considered as too alarming a proof of Virginia influence on this floor, he would propose a new road from Prince Edward County, in the district which he represented, to Petersburg. Mr. R. spoke at considerable length.

Mr. BLOUNT observed that many large counties in the Southern States had no post roads, while scarcely a town in the Northern States was without one.

Mr. QUINCY repelled the suggestion of partiality by recurring to former laws and showing that the Southern States had been previously accommodated better than the Northern States.

Mr. J. RANDOLPH said this was a new sort of political arithmetic. The gentleman from Vermont (Mr. FISK) had said that three roads were discontinued in that State, and four only established, so that the gain was only one. In Virginia you discontinue four established roads, and give us no new one, though we have claimed several. We must work negative quantities; we are minus four. He wished to know how the equation was to be adjusted and managed. Mr. R. concluded a long speech by proposing a new section which went to forbid the carriers of the mail deviating from the old established routes, under penalty of twenty dollars for each offence.

This motion was intended to coerce the mail carriers to go through Colchester, and not through Occoquan, Virginia.

THURSDAY, February 26.

Claim of M. Beaumarchais.

Mr. HOLMES, from the Committee of Claims, to whom was referred the Message of the President of the United States, transmitting a memorial of the French Minister, on the subject of the claim of Amelie Eugenie de Beaumarchais, heir and representative of the late Caron de Beaumarchais, made the following report:

This claim was presented to Congress at their last session by the agent of the representative of the late Caron de Beaumarchais, and a report was made thereon by the Committee of Claims, which was not finally acted upon by the House. The documents presented with that report, and the memorial of the French Minister, transmitted with the President’s Message, contain a full statement of all the material facts and principles involved in the consideration of the case. As the papers accompany the present report, your committee do not deem it necessary to detail particularly the circumstances attending the charge of one million of livres, made of the United States, in their account with Caron de Beaumarchais, (which is the foundation of the present application.) The claimants have uniformly contested the correctness of this charge, declaring that Mr. Beaumarchais has settled with the French Government for the same, conformably to the tenor of his receipt. The substance of this declaration is now confirmed by the French Government, through their Minister, in the following words:

“That the million given on the 10th of June, 1776, to M. de Beaumarchais, was employed in a secret service; that an account of it has been rendered to the King, and approved by him; and that it was not given on account of supplies furnished by the said Beaumarchais to the United States.”

The source whence this declaration proceeds renders it unnecessary to allude to any corroborative circumstances in support of the fact; but, as questions of law may arise in investigating the case, your committee think the course most consistent with the principles of justice, to which the United States have always adhered, would be to submit the claim generally to the consideration of the Secretary of State, with instructions to report to Congress at their next session; that he might consult the Attorney-General upon any questions of law arising in the course of the investigation, and furnish Congress with any other information that would tend to elucidate the subject. They therefore submit the following resolution:

Resolved, That the Message of the President of the United States, transmitting a memorial of the French Minister on the subject of the claim of Amelie Eugenie de Beaumarchais, legal representative of the late Caron de Beaumarchais, be referred to the Secretary of State, and that he be directed to report thereon to Congress at their next session.

The report was agreed to.

FRIDAY, February 27.

Lewis and Clarke.

An engrossed bill making compensation to Messrs. LEWIS and CLARKE and their companions, was read the third time, and on the question that the said bill do pass, it was resolved in the affirmative--yeas 62, nays 23.

MONDAY, March 2.

Public Lands.

The House proceeded to consider the bill sent from the Senate, entitled “An act to prevent settlement being made on lands ceded to the United States, until authorized by law,” together with a report of the Committee on the Public Lands thereon.

Mr. QUINCY moved its indefinite postponement. He observed that the provisions of the bill were highly important, and affected great constitutional questions, which it was not possible for the House to do justice to at so late a period of the session. The principle contained in the first section was, that the rights of all persons shall be forfeited, who shall undertake to settle on the public lands. This provision was not against trespassers, but was obviously intended to destroy the constitutional rights of those who had existing rights. The object of the bill was to defeat these constitutional rights. He had another objection to the bill. It went to forfeit the whole right to the land, in violation of the constitution, which expressly declares that “no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted,”--and yet, under this law, it is undertaken, without any crime, to forfeit the rights of the individual, not only during his life, but likewise during that of his heirs. He had another constitutional objection. The constitution says, “nothing in this constitution shall be so construed as to prejudice the claims of the United States, or of any particular State.” Among the rights derived from the States, if the property has passed, is the right of possession. This bill is therefore an invasion of the rights of the States. There is another constitutional objection. The ninth article of the amendment to the constitution provides that “in suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Here the right is taken away in a question of the highest magnitude to the individual. The object of this law is nothing more or less than to build up the legislative power on the destruction of that of the Judiciary. There was another objection. The constitution says, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Here is an extensive fine imposed. Mr. Q. said it was impossible, in the time that remained, to do justice to this subject--he therefore hoped it would be indefinitely postponed.

Mr. GREGG said he had no intention, on a proposition to postpone, to go into a discussion of the merits of the bill; but he believed an attention to its provisions would obviate many of the objections raised against it. He would not attempt to justify the bill in all its minutiæ. He hoped, however, the gentleman would withdraw his motion; he would then have an opportunity, when the bill was taken up, to offer such amendments as might remove his objections. Mr. G. said he thought the propriety of such a bill was justified by the necessity of the case. The simple question was, whether the United States should derive any benefit from the public lands, or whether they should be given up to intruders. It must be known to every one that almost innumerable persons had settled down on the public lands without meaning to pay for them. Their object was to settle down on them for a while, to sell their improvements, and then make other settlements. Hence the absolute necessity of making some provision on the subject. Mr. G. said he had no particular part of the lands of the United States in view--he took the subject upon general grounds. He believed the intrusions were most numerous in the Indiana Territory; but there was no district in which they had not been made to a considerable extent. He did not pretend to say that this law was the best that could be passed on the subject--they might not however be able to get one much better. When taken up it would be in the power of gentlemen to offer such amendments as they pleased.

Mr. OLIN said he hoped the gentleman from Massachusetts would not withdraw his motion. He believed no man would charge him with a design to cover certain fraudulent claims; but he trusted the principle contained in this bill would not be sanctioned. They were not a judicial body; and had not a right to take the ground assumed in the bill. They had formerly had an attempt made upon them to sanction claims founded in fraud, and he had voted against it. He should also vote against this bill; he would never agree that men should be dispossessed of their property in such a way.

Mr. HASTINGS spoke against the bill, and in favor of the indefinite postponement.

Mr. N. WILLIAMS considered the bill so objectionable that he could not vote for it; and as, from the short period of the session that remained, it was impossible to give it a proper attention, he would vote for the postponement. The first objection he should make to the bill was this--that it destroyed that right hitherto considered sacred, the right of asserting a claim to property--a right that was established and coëval with the laws of the country. Nothing was better settled than that an individual who claimed a right to a piece of property had a right to take possession of it, and hold it till deprived by process of law. Here that right is denied, and in the most exceptionable manner, by giving the President the power of judging when the rights of the United States are violated, and the power to dispossess by military force, before trial of the case. Mr. W. said this appeared to him a principle too tyrannical for them to adopt at the present day--to authorize the President to send a military force to deprive a man of his property, without leaving him any mode of trying his right. This was the very last act, which ought in no case to be resorted to, till the civil laws had been found insufficient. Mr. W. said he did not know that any such power had been ever exercised in Great Britain, or in any other country where less freedom was enjoyed. The military force ought only to be called out when the civil force was insufficient. This was not the only objection he had to the bill. The citizens were rendered liable by it to imprisonment and punishment, without due course of law, notwithstanding all they had lately heard of trial by jury, and the zeal manifested for it. More might be said, but as the time of the House was precious, he would forbear adding any thing further.

Mr. D. R. WILLIAMS hoped the motion would not prevail; and for the very reasons urged by gentlemen. If the details are defective, let us get at the bill--if the principle is defective, that indeed may be a reason for postponement; but any defect in the detail may be corrected. Mr. W. said he could not but congratulate gentlemen on their returning sensibility for the constitution. When their feelings had been harrowed up on a recent occasion, gentlemen had felt no sensibility for the constitution; but when they come to the adoption of a bill, which went to affect Yazooism, all their sensibility was roused. Against this different course he protested. The gentleman from Massachusetts had observed there were not many intruders on the public lands, but surely he could not have read the papers even of his capital, or he must have recollected a proposition made in them to raise and march ten thousand men to take possession of the public lands. Would he in the face of such a fact say there was no danger? But, say gentlemen, will you deprive individuals of their rights? And what are they aiming at? Are they not endeavoring to deprive you of your rights? The fact, however, is, if these people do not trespass on the public lands they will not be affected by this law; and if they do, they ought to be affected by it. As to the application of military force, that is not a new principle; as, under the Administration of General Washington, it was found necessary to vest the power.

Mr. QUINCY.--I did not mean to argue the details of the bill on this question--I merely stated certain considerations to show that it was not proper at this time to discuss the principles contained in the bill. And I ask gentlemen, whether, from the temper which has been manifested, and the importance of the subject, it is possible to get through the bill during the present session? If gentlemen will sit still, and be as callous as they were lately, it may perhaps be carried through this session; but if it be properly discussed, it cannot. Gentlemen say we have no sensibility to constitutional questions, except on this occasion. On the subject, however, of Yazooism, I have not said a word. My remarks were general. I placed that and all other claims on the footing of the law. This bill applies to the whole of them.

The question was then taken by yeas and nays on the indefinite postponement of the bill--yeas 43, nays 68.

Mr. QUINCY moved to strike out the following part of the first section of the bill:

“Such offender or offenders shall forfeit all of his or their right, title, and claim, if any he hath, or they have, of whatsoever nature or kind the same shall or may be, to the lands aforesaid, which he or they shall have taken possession of, or settled, or caused to be occupied, taken possession of, or settled, or which he or they shall have surveyed, or attempted to survey, or caused to be surveyed, or the boundaries thereof, he or they shall have designated, by marking trees or otherwise.”

He said so far as this section went to provide against trespasses, it was unnecessary; and so far as it went to operate against persons having rights to land, it was unconstitutional. So far as respected the former, the arm of the law was sufficiently strong, and they might be removed by its ordinary process. It was not contended that this law was meant to apply against them--it would be absurd to say so, when they alleged no rights. The truth was, this was a general law, made to suit a particular case. This had been acknowledged by the gentleman from Virginia. Mr. Q. said he believed no man would contend, that were it not for that case, such a law would pass. He believed making a general law for particular cases, unusual and unconstitutional.

Mr. Q. here recapitulated the constitutional objections which he before urged.

He observed that the gentleman from South Carolina had referred to a law passed in the year 1799, which prevented any settlement within the Indian boundaries. Could any gentleman compare the case with this? In that case a treaty had been made between the United States and the Indians, one of the provisions of which prevented any citizen from going within the Indian boundary. Mr. Q. said he would use but one other argument, which was, that this law would be a mere nullity. If individuals wished to try their title, as soon as the military attempted to remove them, the courts of justice would interfere; and this would decide the question of title which gentlemen seem afraid to meet.

Mr. LYON supported the motion to strike out.

On which the question was taken by yeas and nays--yeas 35, nays 54.

Mr. QUINCY offered the following proviso to the first section:

“Provided, also, That nothing in this act shall prevent any person claiming title to any such lands, under or by virtue of an act or grant of any State, from peaceably entering thereon, for the purpose of being enabled thereby to bring to a judicial decision at law or in equity the validity of the title so claimed.”

Mr. QUINCY said he made this motion, because he considered this section no more nor less than levelled at the Judiciary of the United States; and that his vote might be recorded, he would ask for the yeas and nays.

The question was then taken by yeas and nays on the proviso, and decided in the negative--yeas 30, nays 64.

Mr. FISK said, that rather than have such a principle introduced into the laws of the United States, as was contained in this bill, he would prefer seeing all the Yazoo land sunk in the sea. He had no idea of seeing the rights to property tried at the point of the bayonet. He had often heard the Yazoo represented as a wicked business. He believed it was such; but he had ever hoped that the Judiciary would not be affected by it. This was nothing more nor less than providing by an armed force to turn men off from the land they occupy, and to deprive them of their rights, if they had any. If they had no rights, it was unnecessary to introduce such a principle into the bill; and if they had, they were to be divested of them by an armed force, without a trial by jury. He would ask if this were constitutional? He would ask gentlemen where were the feelings which they had recently displayed for the rights of the people who had sent them here? He wished gentlemen to recollect the maxim they laid down, that it was immaterial who were the persons affected, the rights were the same, and their invasion as dangerous in the person of the lowest wretch as in that of the most exalted character. Mr. F. said he was decidedly against the bill, and should vote for its rejection.

The bill was immediately read the third time.

Mr. LYON spoke against its passage.

When the question was taken on its passage by yeas and nays, and decided in the affirmative--yeas 57, nays 44.

TUESDAY, March 3.

The bill sent from the Senate, entitled “An act confirming claims to land in the district of Vincennes,” together with the amendments agreed to yesterday, were read the third time, and passed.

Mr. SAMUEL SMITH presented to the House a petition of sundry inhabitants of the State of Pennsylvania, praying an amendment to the second section of the third article of the Constitution of the United States, which extends the judicial power of the United States “to controversies between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign States, citizens, or subjects.”--Laid on the table.

The further consideration of the bill sent from the Senate, entitled “An act to explain the act, entitled ‘An act supplementary to an act, entitled “An act to divide the territory of the United States north-west of the river Ohio into two separate Governments,”’” was postponed indefinitely.

The House resolved itself into a Committee of the Whole on the bill in addition to an act, entitled “An act in addition to an act, entitled ‘An act supplementary to the act providing for a Naval Peace Establishment, and for other purposes.’” The bill was reported with an amendment thereto; which was read, and agreed to by the House.

Eodem Die, half past 6 o’clock.

A message from the Senate informed the House that the Senate have passed a bill, entitled “An act repealing the acts laying duties on salt, and continuing in force, for a further time, the first section of the act, entitled ‘An act further to protect the commerce and seamen of the United States against the Barbary Powers,’” with an amendment; to which they desire the concurrence of this House.

Ordered, That the farther consideration of the bill for the relief of Edward Weld and Samuel Bebee be postponed indefinitely.

The House proceeded to consider the amendment proposed by the Senate to the bill, entitled “An act repealing the acts laying duties on salt, and continuing in force, for a further time, the first section of the act, entitled ‘An act further to protect the commerce and seamen of the United States against the Barbary Powers;’” and the same being again twice read, was, on the question put thereupon, agreed to by the House.

An engrossed bill making compensation for extra services to the Governor, Judges, and Secretary of the Indiana Territory, was read the third time, and passed.

Resolved, That the Clerk of the House of Representatives be directed, within one month after the close of the present session of Congress, to advertise three weeks successively, in two newspapers, printed in the District of Columbia, that he is ready to receive separate proposals for supplying the House of Representatives, for the next Congress, with the necessary stationery, printing, and wood for fuel, in manner prescribed by two resolutions, passed by the House of Representatives, the first on the twenty-eighth of February, one thousand eight hundred and five, and the other on the twenty-first of April, one thousand eight hundred and six.

Thanks to the Speaker, and Adjournment.

On motion of Mr. GREGG, it was resolved unanimously, that the thanks of this House be presented to NATHANIEL MACON, in testimony of their approbation of his conduct in the discharge of the arduous and important duties assigned to him whilst in the Chair: Whereupon,

Mr. SPEAKER made his acknowledgments to the House, in manner following:

“Gentlemen: It has been my constant endeavor to perform faithfully the promise made to you two years ago, to discharge the trust reposed in me with industry and fidelity. For the resolution which you have this minute passed, I earnestly beg of you to accept my sincere thanks; permit me also to assure you, that it will be always remembered with gratitude. I wish you safe home, and a happy meeting with your friends.”

Mr. VARNUM, from the committee appointed on the part of this House, jointly with the committee appointed on the part of the Senate, to wait on the President of the United States, and notify him of the proposed recess of Congress, reported that the committee had performed that service, and that the President signified to them he had no farther communication to make during the present session.

Ordered, That a message he sent to the Senate to inform them that this House, having completed the business before them, are now about to adjourn without day; and that the Clerk of this House do go with the said message. The Clerk accordingly went with the said message; and, being returned, Mr. SPEAKER adjourned the House sine die.

TENTH CONGRESS.--FIRST SESSION.

BEGUN AT THE CITY OF WASHINGTON, OCTOBER 26, 1807

PROCEEDINGS IN THE SENATE.

LIST OF MEMBERS OF THE SENATE.

New Hampshire.--Nicholas Gilman, Nahum Parker.

Massachusetts.--John Quincy Adams, Timothy Pickering.

Vermont.--Stephen R. Bradley, Jonathan Robinson.

Rhode Island.--Benjamin Howland, Elisha Mathewson

Connecticut.--James Hillhouse, Chauncey Goodrich.

New York.--Samuel L. Mitchill.

New Jersey.--John Condit, Aaron Kitchel.

Pennsylvania.--Samuel Maclay, Andrew Gregg.

Maryland.--Samuel Smith, Philip Reed.

Delaware.--Samuel White, James A. Bayard.

Virginia.--Andrew Moore, William B. Giles.

North Carolina.--James Turner, Jesse Franklin.

South Carolina.--Thomas Sumter, John Gaillard.

Georgia.--John Milledge, (Geo. Jones,) Wm. H. Crawford.

Ohio.--Edward Tiffin, John Smith.

Kentucky.--Buckner Thruston, John Pope.

Tennessee.--Joseph Anderson, Daniel Smith.

A PROCLAMATION

By the President of the United States of America.

Whereas great and weighty matters claiming the consideration of the Congress of the United States form an extraordinary occasion for convening them, I do by these presents appoint Monday the twenty-sixth day of October next for their meeting at the City of Washington; hereby requiring the respective Senators and Representatives then and there to assemble in Congress, in order to receive such communications as may then be made to them, and to consult and determine on such measures as in their wisdom may be deemed meet for the welfare of the United States.

In testimony whereof, I have caused the seal of the United States to be hereunto affixed, and signed the same with my hand.

Done at the city of Washington, the thirtieth day of July, in the year of our Lord one thousand eight hundred and seven, and in the thirty-second year of the Independence of the United States.

[L.S.]

TH. JEFFERSON.

By the President:

JAMES MADISON, Secretary of State.

MONDAY, October 26, 1807.

Conformably to the above Proclamation of the President of the United States, of the 30th July last, the First Session of the Tenth Congress commenced this day, at the city of Washington, and the Senate assembled, in their Chamber, in the Capitol.

PRESENT:

GEORGE CLINTON, Vice President of the United States, and President of the Senate.

NICHOLAS GILMAN, from New Hampshire.

JOHN QUINCY ADAMS and TIMOTHY PICKERING, from Massachusetts.

BENJAMIN HOWLAND, from Rhode Island.

STEPHEN R. BRADLEY, from Vermont.

SAMUEL L. MITCHILL, from New York.

JOHN CONDIT and AARON KITCHEL, from New Jersey.

SAMUEL MACLAY and ANDREW GREGG, from Pennsylvania.

SAMUEL WHITE, from Delaware.

SAMUEL SMITH and PHILIP REED, from Maryland.

JAMES TURNER, from North Carolina.

THOMAS SUMTER, from South Carolina.

JOHN MILLEDGE, from Georgia.

BUCKNER THRUSTON, from Kentucky.

JOSEPH ANDERSON and DANIEL SMITH, from Tennessee.

JESSE FRANKLIN, appointed a Senator by the Legislature of the State of North Carolina, for the term of six years, commencing on the fourth day of March last; GEORGE JONES, appointed a Senator by the Executive of the State of Georgia, to fill the vacancy occasioned by the death of Abraham Baldwin; NAHUM PARKER, appointed a Senator by the Legislature of the State of New Hampshire, for the term of six years, commencing on the fourth day of March last; JONATHAN ROBINSON, appointed a Senator by the Legislature of the State of Vermont, to supply the place of Israel Smith, whose seat has become vacant; and EDWARD TIFFIN, appointed a Senator by the Legislature of the State of Ohio, for the term of six years, commencing on the fourth day of March last, respectively took their seats, and produced their credentials, which were read; and the oath prescribed by law was administered to them.

JOHN POPE, appointed a Senator by the State of Kentucky, for the term of six years, commencing on the fourth of March last, stated that the Governor and Secretary being absent when he left home, he came to the seat of Government without his credentials; but that he expected they would be speedily forwarded to him: whereupon, he took his seat in the Senate, and the oath was administered to him as the law prescribes. The oath was also administered to Messrs. BRADLEY, GREGG, MILLEDGE, and REED, their credentials having been read and filed during the last session.

Ordered, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled, and ready to proceed to business.

Ordered, That Messrs. ANDERSON and BRADLEY be a committee on the part of the Senate, together with such committee as the House of Representatives may appoint on their part, to wait on the President of the United States, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them.

On motion, it was

Resolved, That each Senator be supplied, during the present session, with three such newspapers, printed in any of the States, as he may choose; provided that the same be furnished at the usual rate for the annual charge of such papers; and provided, also, that if any Senator shall choose to take any newspapers, other than daily papers, he shall be supplied with as many such papers as shall not exceed the price of three daily papers.

On motion, it was

Resolved, That JAMES MATHERS, Sergeant-at-Arms and Doorkeeper to the Senate, be, and he is hereby, authorized to employ one Assistant and two horses, for the purpose of performing such services as are usually required by the Doorkeeper to the Senate; and that the sum of twenty-eight dollars be allowed him, weekly, for that purpose, to commence with and remain during the session, and for twenty days after.

On motion, it was

Resolved, That two Chaplains, of different denominations, be appointed to Congress during the present session, one by each house, who shall interchange weekly.

Ordered, That the Secretary desire the concurrence of the House of Representatives in this resolution.

A message from the House of Representatives informed the Senate that a quorum of the House of Representatives is assembled, and have elected JOSEPH B. VARNUM, one of the Representatives for Massachusetts, their Speaker, and are ready to proceed to business. They have appointed a committee on their part, jointly with the committee appointed on the part of the Senate, to wait on the President of the United States, and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them.

The Senate adjourned to 11 o’clock to-morrow morning.

TUESDAY, October 27.

Mr. ANDERSON reported, from the joint committee, that they had waited on the President of the United States, agreeably to the resolution of yesterday, and that the President informed the committee that he would make a communication to the two Houses this day, at 12 o’clock.

President’s Annual Message.

The following Message was received from the PRESIDENT OF THE UNITED STATES:

_To the Senate and House of Representatives of the United States_:

Circumstances, fellow-citizens, which seriously threatened the peace of our country, have made it a duty to convene you at an earlier period than usual. The love of peace, so much cherished in the bosoms of our citizens, which has so long guided the proceedings of their public councils, and induced forbearance under so many wrongs, may not ensure our continuance in the quiet pursuits of industry. The many injuries and depredations committed on our commerce and navigation upon the high seas for years past, the successive innovations on those principles of public law which have been established by the reason and usage of nations as the rule of their intercourse, and the umpire and security of their rights and peace, and all the circumstances which induced the extraordinary mission to London, are already known to you. The instructions given to our Ministers were framed in the sincerest spirit of amity and moderation. They accordingly proceeded, in conformity therewith, to propose arrangements which might embrace and settle all the points in difference between us, which might bring us to a mutual understanding on our neutral and national rights, and provide for a commercial intercourse on conditions of some equality. After long and fruitless endeavors to effect the purposes of their mission, and to obtain arrangements within the limits of their instructions, they concluded to sign such as could be obtained, and to send them for consideration, candidly declaring to their other negotiators at the same time that they were acting against their instructions, and that their Government therefore could not be pledged for ratification. Some of the articles proposed might have been admitted on a principle of compromise, but others were too highly disadvantageous; and no sufficient provision was made against the principal source of the irritations and collisions which were constantly endangering the peace of the two nations. The question, therefore, whether a treaty should be accepted in that form, could have admitted but of one decision, even had no declarations of the other party impaired our confidence in it. Still anxious not to close the door against friendly adjustment, new modifications were framed, and further concessions authorized than could before have been supposed necessary; and our Ministers were instructed to resume their negotiations on these grounds. On this new reference to amicable discussion we were reposing in confidence, when, on the 22d day of June last, by a formal order from a British Admiral, the frigate Chesapeake, leaving her port for a distant service, was attacked by one of those vessels which had been lying in our harbors under the indulgences of hospitality, was disabled from proceeding, had several of her crew killed, and four taken away. On this outrage no commentaries are necessary. Its character has been pronounced by the indignant voice of our citizens with an emphasis and unanimity never exceeded. I immediately, by proclamation, interdicted our harbors and waters to all British armed vessels, forbade intercourse with them; and, uncertain how far hostilities were intended, and the town of Norfolk, indeed, being threatened with immediate attack, a sufficient force was ordered for the protection of that place, and such other preparations commenced and pursued as the prospect rendered proper. An armed vessel of the United States was despatched with instructions to our Ministers at London to call on that Government for the satisfaction and security required by the outrage. A very short interval ought now to bring the answer, which shall be communicated to you as soon as received; then, also, or as soon after as the public interests shall be found to admit, the unratified treaty and proceedings relative to it, shall be made known to you.

The aggression thus begun has been continued on the part of the British commanders, by remaining within our waters in defiance of the authority of the country, by habitual violations of its jurisdiction, and, at length, by putting to death one of the persons whom they had forcibly taken from on board the Chesapeake. These aggravations necessarily lead to the policy either of never admitting an armed vessel into our harbors, or of maintaining in every harbor such an armed force as may constrain obedience to the laws, and protect the lives and property of our citizens against their armed guests. But the expense of such a standing force, and its inconsistence with our principles, dispense with those courtesies which would necessarily call for it, and leave us equally free to exclude the navy as we are the army of a foreign power from entering our limits.

To former violations of maritime rights another is now added of very extensive effect. The Government of that nation has issued an order interdicting all trade by neutrals between ports not in amity with them. And being now at war with nearly every nation on the Atlantic and Mediterranean seas, our vessels are required to sacrifice their cargoes at the first port they touch, or to return home without the benefit of going to any other market. Under this new law of the ocean, our trade on the Mediterranean has been swept away by seizures and condemnations, and that in other seas is threatened with the same fate.

Among our Indian neighbors in the North-western quarter, some fermentation was observed soon after the late occurrences, threatening the continuance of our peace. Messages were said to be interchanged, and tokens to be passing, which usually denote a state of restlessness among them, and the character of the agitators pointed to the sources of excitement. Measures were immediately taken for providing against that danger; instructions were given to require explanations, and, with assurances of our continued friendship, to admonish the tribes to remain quiet at home, taking no part in quarrels not belonging to them. As far as we are yet informed, the tribes in our vicinity, who are most advanced in the pursuits of industry, are sincerely disposed to adhere to their friendship with us, and to their peace with all others. While those more remote do not present appearances sufficiently quiet to justify the intermission of military precaution on our part.

The great tribes on our South-western quarter, much advanced beyond the others in agriculture and household arts, appear tranquil, and identifying their views with ours, in proportion to their advancement. With the whole of these people, in every quarter, I shall continue to inculcate peace and friendship with all their neighbors, and perseverance in those occupations and pursuits which will best promote their own well-being.

The appropriations of the last session for the defence of our seaport towns and harbors, were made under expectation that a continuance of our peace would permit us to proceed in that work according to our convenience. It has been thought better to apply the sums then given toward the defence of New York, Charleston, and New Orleans, chiefly, as most open and most likely first to need protection, and to leave places less immediately in danger to the provisions of the present session.

The gunboats, too, already provided, have, on a like principle, been chiefly assigned to New York, New Orleans, and the Chesapeake. Whether our movable force on the water, so material in aid of the defensive works on the land, should be augmented in this or any other form, is left to the wisdom of the Legislature. For the purpose of manning these vessels, in sudden attacks on our harbors, it is a matter of consideration whether the seamen of the United States may not justly be formed into a special militia, to be called on for tours of duty in defence of the harbors where they shall happen to be; the ordinary militia of the place furnishing that portion which may consist of landsmen.

I informed Congress at their last session of the enterprises against the public peace, which were believed to be in preparation by Aaron Burr and his associates, of the measures taken to defeat them, and to bring the offenders to justice. Their enterprises were happily defeated by the patriotic exertions of the militia whenever called into action, by the fidelity of the Army and energy of the Commander-in-chief, in promptly arranging the difficulties presenting themselves on the Sabine, repairing to meet those arising on the Mississippi, and dissipating, before their explosion, plots engendering there. I shall think it my duty to lay before you the proceedings, and the evidence publicly exhibited on the arraignment of the principal offenders before the circuit court of Virginia. You will be enabled to judge whether the defect was in the testimony, in the law, or in the administration of the law, and wherever it shall be found, the Legislature alone can apply or originate the remedy.[50] The framers of our constitution certainly supposed they had guarded, as well their Government against destruction by treason, as their citizens against oppression, under pretence of it; and if these ends are not attained, it is of importance to inquire by what means more effectual they may be secured.

The accounts of the receipts of revenue during the year ending on the thirtieth day of September last, being not yet made up, a correct statement will be hereafter transmitted from the Treasury. In the mean time, it is ascertained that the receipts have amounted to near sixteen millions of dollars, which, with the five millions and a half in the Treasury at the beginning of the year, have enabled us, after meeting the current demands and interest incurred, to pay more than four millions of the principal of our funded debt. These payments, with those of the preceding five and a half years, have extinguished of the funded debt twenty-five millions and a half of dollars, being the whole which could be paid or purchased within the limits of the law and of our contracts, and have left us in the Treasury eight millions and a half of dollars.

Matters of minor importance will be the subjects of future communications, and nothing shall be wanting on my part which may give information or despatch to the proceedings of the Legislature in the exercise of their high duties, and at a moment so interesting to the public welfare.

TH. JEFFERSON.

OCTOBER 27, 1807.

The Message was read, and three hundred copies thereof, together with the documents therein referred to, ordered to be printed for the use of the Senate.

THURSDAY, October 29.

JAMES HILLHOUSE, from the State of Connecticut, attended.

MONDAY, November 2.

JOHN GAILLARD, appointed a Senator by the Legislature of the State of South Carolina, for the term of six years, commencing on the fourth day of March last, and JOHN SMITH, appointed a Senator by the Legislature of the State of New York, for the term of six years, commencing on the fourth day of March last, respectively took their seats, and the oath prescribed by law was administered to them: their credentials having been read and filed during the last session.

On motion, by Mr. MILLEDGE, it was

Resolved, That the members of the Senate, from a sincere desire of showing every mark of respect due to the memory of the Honorable ABRAHAM BALDWIN, deceased, late a member thereof, will go into mourning for him one month, by the usual mode of wearing a crape round the left arm.

On motion, by Mr. HILLHOUSE, it was

Resolved, That the members of the Senate from a sincere desire of showing every mark of respect due to the memory of the Honorable URIAH TRACY, deceased, late a member thereof, will go into mourning for him one month, by the usual mode of wearing a crape round the left arm.

TUESDAY, November 3.

ANDREW MOORE, from the State of Virginia, attended.

The PRESIDENT communicated a letter, signed William Eaton, enclosing the translation of a petition of Hamet Bashaw Caramalli, stating his services and sufferings in behalf of the United States, in which, relying on promises of remuneration, he hath exposed his life, and sacrificed all his means, and praying relief; and the petition was read, and ordered to lie for consideration.

THURSDAY, November 5.

Removal of Federal Judges on Address from Congress.

Mr. TIFFIN submitted the following motion for consideration:

Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of both Houses concurring, That the following section be submitted to the Legislatures of the several States, which, when ratified and confirmed by the Legislatures of three-fourths of the said States, shall be valid and binding, as a part of the Constitution of the United States, in lieu of the first section of third article thereof:

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices for ---- years, shall be removed by the President on the address of two-thirds of both Houses of Congress requesting the same, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.”

MONDAY, November 9.

Mr. POPE, appointed a Senator by the State of Kentucky, produced his credentials, which were read and ordered to lie on file.

FRIDAY, November 13.

Slavery in Indiana Territory.

Mr. FRANKLIN, from the committee to whom were referred, on the 7th instant, the resolutions of the Legislative Council and House of Representatives of the Indiana Territory, on the propriety of suspending the sixth article of compact contained in the Ordinance for the government of the North-western Territory, passed the 13th day of July, 1787, together with a remonstrance of certain citizens of Clark County against the said resolutions, made report; which was read, and ordered to lie for consideration.

The report is as follows:

The Legislative Council and House of Representatives, in their resolutions, express their sense of the propriety of introducing slavery into their Territory, and solicit the Congress of the United States to suspend, for a given number of years, the sixth article of compact, in the Ordinance for the government of the Territory north-west of the river Ohio, passed the 13th day of July, 1787. That article declares: “there shall be neither slavery nor involuntary servitude in the said Territory.”

The citizens of Clark County, in their remonstrance, express their sense of the impropriety of the measure, and solicit the Congress of the United States not to act on the subject, so as to permit the introduction of slaves into the Territory; at least until their population shall entitle them to form a constitution and State government.

Your committee, after duly considering the matter, respectfully submit the following resolution:

Resolved, That it is not expedient at this time to suspend the sixth article of compact for the government of the Territory of the United States north-west of the river Ohio.

TUESDAY, November 17.

The PRESIDENT communicated a letter from JAMES FENNER, stating the resignation of his seat in the Senate.

Slavery in Indiana.

The Senate took into consideration the report of the committee to whom was referred, on the 7th instant, the resolutions of the Legislative Council and House of Representatives of the Indiana Territory, on the propriety of suspending the 6th article of compact contained in the ordinance for the government of the North-western Territory, and agreed thereto; and,

Resolved, That it is not expedient, at this time, to suspend the 6th article of compact for the government of the Territory of the United States north-west of the river Ohio.

THURSDAY, November 19.

The credentials of ELISHA MATHEWSON, appointed a Senator by the Legislature of the State of Rhode Island, in the place of JAMES FENNER, elected Governor, were read.

FRIDAY, November 20.

Mr. MATHEWSON, from the State of Rhode Island, took his seat in the Senate, and the oath prescribed by law was administered to him.

FRIDAY, November 27.

CHAUNCEY GOODRICH, appointed a Senator by the Legislature of the State of Connecticut, to fill the vacancy occasioned by the death of the late Hon. Uriah Tracy, attended, and his credentials were read; and the oath prescribed by law was administered to him.

Case of John Smith.

Mr. MACLAY offered the following resolution:

Resolved, That a committee be appointed to inquire and report to the Senate their opinion whether John Smith, a Senator from the State of Ohio, ought not to be expelled from the Senate, in consequence of the part which he took in the conspiracy of Aaron Burr, against the peace and prosperity of the United States, or what other steps, in their opinion, it may be necessary and proper, under the present circumstances, for the Senate to adopt.

Mr. HOPE moved to amend this resolution; to make way for which amendment, Mr. MACLAY withdrew his resolution.

Mr. THRUSTON offered the following resolution as an amendment, omitting that part in italics, which Mr. JONES moved as an amendment to the amendment:

Resolved, That a committee be appointed to inquire whether it be compatible with the honor and privileges of this House, that John Smith, a Senator from the State of Ohio, against whom bills of indictment were found at the Circuit Court of Virginia, held at Richmond in August last, for treason and misdemeanor, should be permitted any longer to hold a seat therein; and that the committee do inquire into all the facts regarding the conduct of Mr. Smith, as an alleged associate of Aaron Burr, and report the same to the Senate.

Mr. HILLHOUSE objected to the resolution on the ground of allowing the committee too wide a latitude.

Mr. ADAMS vindicated the resolution from this objection.

The question was then taken on the resolution offered by Mr. THRUSTON, and amended by Mr. JONES, and carried without a division; and Messrs. ADAMS, MACLAY, FRANKLIN, S. SMITH, POPE, THRUSTON, and ANDERSON, were appointed the committee.

WEDNESDAY, December 9.

WILLIAM H. CRAWFORD, appointed a Senator by the Legislature of the State of Georgia, to fill the vacancy occasioned by the death of Abraham Baldwin, attended and produced his credentials, which were read, and the oath prescribed by law was administered to him.

FRIDAY, December 18.

Embargo.

The following Message was received from the PRESIDENT OF THE UNITED STATES:

_To the Senate and House of Representatives of the United States_:

The communications now made, showing the great and increasing dangers with which our vessels, our seamen, and merchandise, are threatened on the high seas and elsewhere, from the belligerent powers of Europe, and it being of the greatest importance to keep in safety these essential resources, I deem it my duty to recommend the subject to the consideration of Congress, who will doubtless perceive all the advantages which may be expected from an inhibition of the departure of our vessels from the ports of the United States.

Their wisdom will also see the necessity of making every preparation for whatever events may grow out of the present crisis.

TH. JEFFERSON.

DECEMBER 18, 1807.

Ordered, That the Message, together with the papers therein referred to, be committed to Messrs. SMITH of Maryland, ADAMS, ANDERSON, BRADLEY, and GREGG, to consider and report thereon; and that the same be considered as confidential.

MONDAY, December 21.

Mr. REED, from the State of Maryland, attended.

THURSDAY, December 31.

Case of John Smith.

Mr. ADAMS stated that the committee appointed on the 27th of November last, “to inquire whether it be compatible with the honor and privileges of this House that JOHN SMITH, a Senator from the State of Ohio, against whom bills of indictment were found at the Circuit Court of Virginia, held at Richmond in August last, for treason and misdemeanor, should be permitted any longer to have a seat therein,” were ready to report: and he made the following motion, which was read and agreed to:

Ordered, That John Smith, a Senator from the State of Ohio, be notified by the Vice President to attend in his place.

The VICE PRESIDENT accordingly notified Mr. SMITH in the words following:

SIR: You are hereby required to attend the Senate in your place without delay.

By order of the Senate:

GEO. CLINTON, President of the Senate.

JOHN SMITH, Esq., Senator from the State of Ohio.

And Mr. SMITH attended.

Whereupon, Mr. ADAMS made a report from the committee last mentioned; and the report was read, and three hundred copies thereof were ordered to be printed for the use of the Senate.

The report was read, ending with 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.

The documents accompanying the report are very voluminous. Among them is the answer of Mr. JOHN SMITH, covering ninety-six manuscript pages.

MONDAY, January 4, 1808.

JAMES A. BAYARD, from the State of Delaware, attended.

The PRESIDENT communicated a letter from JOHN SMITH, a Senator from the State of Ohio; which was read.

THURSDAY, January 7.

WILLIAM B. GILES, from the State of Virginia, attended.

FRIDAY, January 8.

Executive Contingent Fund.

Another Message was received from the PRESIDENT OF THE UNITED STATES, as follows:

_To the Senate and House of Representatives of the United States_:

I now render to Congress the account of the fund established for defraying the contingent expenses of Government for the year 1807. Of the sum of $18,012 50, which remained unexpended at the close of the year 1806, $8,731 11 have been placed in the hands of the Attorney-General of the United States, to enable him to defray sundry expenses incident to the prosecution of Aaron Burr and his accomplices, for treasons and misdemeanors alleged to have been committed by them. And the unexpended balance of $9,275 39 is now carried, according to law, to the credit of the surplus fund.

TH. JEFFERSON.

JANUARY 8, 1808.

The Message and papers therein referred to were read.

WEDNESDAY, January 13.

Mr. FRANKLIN, from the State of North Carolina, attended.

MONDAY, February 1.

Claim of Thomas Paine.

The PRESIDENT communicated an address, signed Thomas Paine, stating his claim on the United States for services rendered during the Revolutionary war, and his title to remuneration. The address was read, and is as follows:

NEW YORK, January 21, 1808.

To the honorable the Senate of the United States:

The purport of this address is to state a claim I feel myself entitled to make on the United States, leaving it to their Representatives in Congress to decide on its worth and its merits. The case is as follows:

Towards the latter end of the year 1780, the continental money had become so depreciated (a paper dollar not being more than a cent) that it seemed next to impossible to continue the war.

As the United States were then in alliance with France, it became necessary to make France acquainted with our real situation. I therefore drew up a letter to Count de Vergennes, stating undisguisedly the true case, and concluding with the request whether France could not, either as a subsidy or a loan, supply the United States with a million sterling, and continue that supply, annually, during the war.

I showed the letter to Mr. Marbois, Secretary to the French Minister. His remark upon it was, that a million sent out of the nation exhausted it more than ten millions spent in it. I then showed it to Mr. Ralph Izard, member of Congress from South Carolina. He borrowed the letter of me, and said, “We will endeavor to do something about it in Congress.”

Accordingly, Congress appointed Colonel John Laurens, then aid to General Washington, to go to France and make a representation of our situation, for the purpose of obtaining assistance. Colonel Laurens wished to decline the mission, and that Congress would appoint Colonel Hamilton; which Congress did not choose to do.

Colonel Laurens then came to state the case to me. He said he was enough acquainted with the military difficulties of the Army, but that he was not enough acquainted with political affairs, nor with the resources of the country, to undertake the mission; “but,” said he, “if you will go with me, I will accept it;” which I agreed to do, and did do.

We sailed from Boston in the Alliance frigate, Captain Barry, the beginning of February, 1781, and arrived at L’Orient the beginning of March.

The aid obtained from France was six millions of livres as a present, and ten millions as a loan, borrowed in Holland, on the security of France.

We sailed from Brest in the French Resoulue frigate the first of June, and arrived at Boston on the 25th of August, bringing with us two millions and a half of livres, in silver, and convoying a ship and a brig laden with clothing and military stores. The money was transported with sixteen ox teams to the National Bank at Philadelphia, which enabled the army to move to Yorktown to attack, in conjunction with the French army under Rochambeau, the British army under Cornwallis. As I never had a cent for this service, I feel myself entitled, as the country is now in a state of prosperity, to state the case to Congress.

As to my political works, beginning with the pamphlet Common Sense, published the beginning of January, 1776, which awakened America to a declaration of independence, as the President and Vice President both know, as they were works done from principle, I cannot dishonor that principle by asking any reward for them. The country has been benefited by them, and I make myself happy in the knowledge of it It is, however, proper for me to add, that the mere independence of America, were it to have been followed by a system of government modelled after the corrupt system of the English Government, it would not have interested me with the unabated ardor it did. It was to bring forward and establish the representative system of government, as the work itself will show, that was the leading principle with me in writing that work, and all my other works, during the progress of the Revolution. And I followed the same principle in writing the Rights of Man, in England.

There is a resolve of the old Congress, while they sat at New York, of a grant of three thousand dollars to me. The resolve is put in handsome language, but it has relation to a matter which it does not express. Elbridge Gerry was chairman of the committee who brought in the resolve. If Congress should think proper to refer this memorial to a committee, I will inform that committee of the particulars of it. I have also to state to Congress, that the authority of the old Congress was become so reduced towards the latter end of the war as to be unable to hold the States together. Congress could do no more than recommend, of which the States frequently took no notice; and when they did, it was never uniformly.

After the failure of the five-per-cent duty, recommended by Congress, to pay the interest of a loan to be borrowed in Holland, I wrote to Chancellor Livingston, then Minister for Foreign Affairs, and Robert Morris, Minister of Finance, and proposed a method for getting over the whole difficulty at once; which was, by adding a Continental Legislature to Congress, who should be empowered to-make laws for the Union, instead of recommending them; so the method proposed met with their full approbation. I held myself in reserve, to take the subject up whenever a direct occasion occurred.

In a conversation afterwards with Governor Clinton, of New York, now Vice President, it was judged that, for the purpose of my going fully into the subject, and to prevent any misconstruction of my motive or object, it would be best that I received nothing from Congress, but leave it to the States, individually, to make me what acknowledgment they pleased.

The State of New York made me a present of a farm, which, since my return to America, I have found it necessary to sell; and the State of Pennsylvania voted me five hundred pounds, their currency. But none of the States to the east of New York, or the south of Philadelphia, ever made me the least acknowledgment. They had received benefits from me, which they accepted, and there the matter ended. This story will not tell well in history. All the civilized world know I have been of great service to the United States, and have generously given away talent that would have made me a fortune.

I much question if an instance is to be found in ancient or modern times of a man who had no personal interest in the cause he took up--that of independence and the establishment of a representative system of government, and who sought neither place nor office after it was established--that persevered in the same undeviating principles as I have done, for more than thirty years, and that in spite of difficulties, dangers, and inconveniences, of which I have had my share.

THOMAS PAINE.

MONDAY, February 22.

Removal of Federal Judges on Address from Congress.

Mr. MACLAY, agreeably to instructions from the Legislature of the State of Pennsylvania to their Senators in Congress, submitted the following resolution:

Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, That the first section of the third article of the Constitution of the United States be so altered and amended “that the judges of the courts thereof shall hold their offices for a term of years; that they shall be removed by the President of the United States on the address of the majority of the members present, of the Senate and House of Representatives of the United States in Congress assembled; and that on all trials of impeachment for high crimes and misdemeanors, a majority of the Senate shall be competent to conviction.”

And the resolution was read, and referred to Mr. TIFFIN and others, the committee appointed the 25th of January last, on this subject, to consider and report thereon.

Death of Hon. John Dickinson.

Mr. WHITE.--Mr. President: It is with much pain and regret, sir, that I rise to announce to the Senate the irreparable loss our country has sustained in the death of one of her worthiest citizens and most distinguished patriots. Time has measured and told the days of another venerable sage of the Revolution. JOHN DICKINSON, the illustrious cotemporary and friend of Washington and Franklin, is now no more--his head and his heart devoted to the service and love of his country, till his locks were bleached by the frosts of more than seventy winters, have now descended in silence to the grave. No humble eulogy of mine shall attempt to approach his exalted merit. The happiness of his fellow-citizens was his only aim, and upon the grateful hearts of his countrymen is indelibly engraven the dearest memento of his wisdom and his worth. Those who shared his personal acquaintance will never forget his private virtues--volumes from his pen, that do honor to the age, that will be read and admired as long as the love of science and freedom shall be cherished, record his inflexible patriotism; and the liberties of this country, which he contributed so essentially in establishing, will I hope long, very long indeed, sir, continue to be the proud and unshaken monument of his fame. The feelings of every gentleman of this honorable body will I am sure be in unison on the motion I am about to propose; it is an humble tribute of respect to the memory of the deceased, in the form of the following resolution:

Resolved, unanimously, That the Senate is penetrated with the full sense of the merit and patriotism of the late JOHN DICKINSON, Esq., deceased, and that the members thereof do wear crape on the left arm for one month, in testimony of the national gratitude and reverence towards the memory of that illustrious patriot.

This resolution was immediately adopted.

WEDNESDAY, March 2.

Impressment of American Seamen.

The following Message was received from the PRESIDENT OF THE UNITED STATES:

To the Senate of the United States:

In compliance with a resolution of the Senate, of November 30, 1807, I now transmit a report of the Secretary of State on the subject of impressments, as requested in that resolution. The great volume of the documents, and the time necessary for the investigation, will explain to the Senate the causes of the delay which has intervened.

TH. JEFFERSON.

MARCH 2, 1808.

* * * * *

DEPARTMENT OF STATE, Feb. 29, 1808.

Agreeably to a resolution of the Senate of the 30th November last, the Secretary of State has the honor to submit to the President, for the information of the Senate, the statements herewith enclosed, from No. 1 to 18, inclusive.

No. 1. A statement of impressments from American vessels into the British service, since the last report made from this department on the 5th March, 1806, founded upon documents transmitted in the first instance to this office.

Those from No. 2 to 13 inclusive, being a series of returns and abstracts received from General Lyman, the agent of the United States at London, giving an account of the applications made by him in relation to seamen, from 1st April, 1806, to 30th June, 1807, and of the result of those applications, and exhibiting other particulars required by the resolution.

Not having received any returns from the West Indies since the date of the last report to the House of Representatives on this subject, nor from General Lyman for the quarter ending on the 1st January last, the Secretary of State has not the means at present of giving, with any degree of precision, the information asked for in the last clause of the resolution. From the returns in the office it would appear that four thousand two hundred and twenty-eight American seamen had been impressed into the British service since the commencement of the war, and that nine hundred and thirty-six of this number had been discharged, leaving in that service three thousand two hundred and ninety-two. General Lyman, in a letter dated on the 21st October, 1807, estimates the American seamen now detained in the British service at a number greatly beyond what is here stated; but he does not give the data on which his estimate is made.

All which is respectfully submitted.

JAMES MADISON.

The PRESIDENT of the United States.

The Message and papers were read, and ordered to lie for consideration.

FRIDAY, April 1.

Case of John Smith.

This being the day assigned for hearing counsel, the PRESIDENT said the Senate were ready to hear the counsel of JOHN SMITH, in any thing they had to offer why the resolution (for expelling him) should not be adopted.

Mr. ADAMS submitted it to the Senate, whether it was not most proper that the counsel should be permitted to show cause why the report should not be adopted. He remarked that in like cases the whole report, comprising the grounds on which the final resolution was founded, had been the subject of discussion, and of approbation or rejection. He considered this the correct course, that the world and posterity might know the grounds on which the Senate acted.

A short conversation ensued on this suggestion of Mr. ADAMS, in which the principles of the report were incidentally noticed. In reply to Mr. ADAMS’ remarks, it was said that it could not be expected that a deliberative body, however agreed in the guilt or innocence of the accused, would be able to unite in their agreement to a complicated report, embracing a variety of abstract and disputable principles.

Mr. GILES intimated the idea that this discussion was premature; that, as the Senate had by their vote determined to hear counsel on the report, it was proper that this course should, in the present stage of the business, be pursued. After having heard counsel, it would be for the Senate, as they then should see fit, either to decide on the resolution alone, or on the report connected with it.

This suggestion having been acquiesced in, without any vote,

Mr. FRANCIS S. KEY, of counsel for Mr. SMITH, asked for subpœnas for Messrs. DAVENPORT, MORROW, and STURGES, of the House of Representatives, to attest the credibility of witnesses; and likewise for a subpœna for General Wilkinson.

It was intimated that the usual mode of proceeding in such a case was to request the attendance of the members of the other House.

Mr. KEY then opened the defence by a few very concise preliminary remarks. He observed that the counsel of Mr. SMITH felt highly gratified in appearing before the Senate with a body of testimony sufficiently strong to flatter them with the assurance of a favorable result; that all the apprehensions which had arisen from the distance and the extent of the testimony were almost removed; and that although testimony was still coming in, they were fully satisfied with that they had already received.

He said they would be able to show that the testimony of Elias Glover was not worthy of credit. He admitted that if this testimony were correct, JOHN SMITH was unworthy of his seat; but they would be able entirely to destroy its weight by destroying his credibility. They would, likewise, be able to show that there was nothing else in the other testimony which materially affected the character of the accused. They would also, after this, enter into a consideration of the principles on which a decision in this case ought to be made; and endeavor to show that that decision could only be made according to legal evidence; that the Senate were bound by judicial principles, and that the accused was consequently entitled to the same privileges as he would be in a court of justice.

Mr. KEY said he should first proceed to offer depositions to discredit Elias Glover. He would show that he had not only made charges, which were contradicted by respectable testimony, but likewise by his own declarations at other times. He would commence with the proof of his general character, and show that it had been such, ever since he entered into life, as to destroy the weight of his testimony; he would show that he had in several instances perjured himself. He would then show his inducements to perjure himself in this case, by establishing the existence of a combination, of which he was the head, to ruin Mr. SMITH.

Mr. KEY was about to read sundry depositions taken at Newtown, Connecticut. Previous to this he read the certificates of notice given by Mr. SMITH to Mr. Glover, of his purpose to take depositions relative to his character. From these it appeared that Mr. SMITH had, on the 10th of February, notified him of his intention to take depositions at Delhi, New York, on the 15th February, at Newtown, Connecticut, on the 20th, in the Mississippi Territory on the 25th, at Cincinnati the ----

Mr. CRAWFORD objected to reading these depositions. He observed that they went seriously to affect the character of Mr. Glover; that the Senate had, in such a case, prescribed that the depositions should only be received in case of reasonable notice having been given to the person whose character it was intended to discredit: that in this case no such reasonable notice had been allowed; that the notice was too short to be of the least use to Mr. Glover.

Mr. HARPER, of counsel for Mr. SMITH, observed that as much time had been given by Mr. SMITH as he could possibly spare. The times fixed for taking depositions at the several places, had been as distant as they could be, consistently with Mr. SMITH’s getting the testimony forwarded to the seat of Government by the 1st of March; the period then fixed by the Senate for his hearing.

Mr. S. SMITH stated that, although the resolution fixing the 1st of March for a hearing had passed on the 20th of January, the notices of Mr. SMITH were not dated till the 10th of February, at Berrysville, in Virginia, where he had put them into the post office.

A short debate followed, in which the principal circumstances noticed were, that according to Mr. SMITH’s affidavit, on which the first postponement had taken place, it was not expected that depositions to discredit Elias Glover’s would be taken at any other place than Cincinnati; that, if these depositions, though informal, were read, they would be taken by the Senate only for what they were worth, and that, if ex parte evidence was received in favor of Mr. SMITH, it could not be rejected when against him.

On reading the depositions, seventeen members being a majority, rose in the affirmative.

The counsel then read the depositions of Calvin Chamberlain, Henry Peck, jun., Ely Perry, William Meeker, Daniel Wheeler, John Norfrog, Luther Bulkley, Zalmon Tousy, jun., Cyrus Sprindle, James Nicholls, Solomon Booth, Oliver Tousy, Gideon Fisher, Stephen Beers, jun., N. Hays, Joseph Michin, Solomon M. Sackriden, James Monger, Homer R. Phelps, Joshua H. Brent, Gabriel North, John T. Moore, Philip Gabehart, Cyrenus Foote, Roswell Hodgkiss, Benijah Beardley, E. K. Granger, Henry Tyler, John B. Judson, Samuel Stephen, George Fost, Asa Tyler, Nathan T. Tyler, John S. Gano, Francis Dunlavy, John Sellman, Stephen Macfarland, George Gordon, Edward H. Stall, Thomas N. Still.

These depositions are made by persons residing in the States of Connecticut, New York, and Ohio.

About four o’clock the Senate adjourned.

TUESDAY, April 5.

Mr. ANDERSON, from the committee to whom was referred the bill making provision for the disposal of the public lands of the United States in the State of Tennessee, reported it with further amendments; which were read for consideration.

Case of John Smith.

The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of JOHN SMITH, a Senator from the State of Ohio, as an alleged associate of Aaron Burr.

Mr. SMITH attended, together with Messrs. Harper and Key, counsel on his behalf.

Mr. HARPER read the depositions of Joseph H. Brett, John T. Moore, Gabriel North, Erastus Root, C. Keiser, Isaac G. Burnett, David Zeigler, John Bradford, Jacob Broadwell, Jos. Van Horne, Samuel Hildige, Geo. Williamson, M. Williams, and William Goforth. Messrs. Van. Rensselaer, Jeremiah Morrow, Tallmadge, Bacon, and Davenport, of the House of Representatives, and Mr. Tiffin, of the Senate, were then examined, and attested to the general respectability of character of several of the witnesses from whom depositions had been received on the part of Mr. SMITH.

Mr. KEY then rose to show why the report of the committee should not be adopted, and after taking a legal view of the rules of evidence which should govern the admissibility of evidence in this inquiry, and arguing that the Senate could inquire into nothing which was indictable at common law, he proceeded to the facts of the case, and said:

Having now, sir, stated these objections against the present inquiry, and more particularly and more earnestly against the principles which the honorable committee have recommended to govern it, I gladly proceed to discharge the remaining part of my duty, by submitting a few remarks upon the testimony exhibited upon this occasion. It will be readily admitted that, excepting Elias Glover, no witness deposes directly and positively to the guilt of the honorable member accused. Their testimony is wholly circumstantial, and I hope to be enabled to show, that from no circumstance they state can guilt be fairly inferred. But the chief question to be ascertained, the point on which this inquiry will be found wholly to turn, is the degree of credit which is to be given to the testimony of Elias Glover. I am much gratified, sir, in recollecting the importance attached to the evidence of this witness in the commencement of this proceeding, and the almost universal acknowledgment that Mr. Smith’s fate depended upon the truth or falsehood of his testimony. We are most willing to rest it upon this issue; we could not ask a more favorable one than that which compels every man before he can believe in the guilt of the accused, to the necessity of first believing in the truth of Elias Glover, and this I now proceed to show is impossible.

The first question asked on these occasions, is, “What is the general character of the witness?” We have traced this person, sir, from his first setting out in life, have followed him into every place where he has lived, and put this question to his neighbors. How is it answered? At Newtown, Connecticut, where he first established himself, thirteen deponents declare him unworthy of credit; with some slight difference of expression, this is clearly and positively affirmed by them all. One of them, however, (Mr. Oliver Tousy, I believe,) states that he made particular inquiries of almost all the respectable persons in and about Newtown, and that he inquired of none but respectable persons; that, from the result of these inquiries, he is induced to believe that was a respectable jury taken from Newtown and Elias Glover sworn as a witness before them he would not be believed. It seems, sir, that he soon changed so disagreeable a situation. We next hear of him at Delhi, in Delaware County, New York. From this place, sir, we have produced to you the depositions of twenty-one witnesses, who all concur in a similar opinion of his infamy, using, if possible, still stronger language than the witnesses from Newtown. By what means can a character thus charged be defended? Can it be said that these men are selected, and are his enemies? They swear they are not. That they are not themselves credible? Many of them were, fortunately, known to the honorable members of the other House, who have told you they are respectable. Among them are the chief judge and the associates, and the sheriff of the county in which he practised, of whom one is now a Senator of New York, and two of the others members of Assembly; nor can such testimony be outweighed by that which his father and his uncle have collected in support of his character. There are few men so infamous but that some persons may be always found to declare a good opinion of them, and what sort of persons these are who have said they never heard any thing against the reputation of Elias Glover, it may not be difficult to ascertain. Upon this subject, it is only necessary to call the attention of the Senate to the manner in which those depositions in New York are proved to have been taken by his uncle, David Beers, who is himself one of the deponents. Ezekiel K. Granger states that this man used every expedient to prevent the attendance of Mr. Smith’s attorney; that he refused to examine any witness in his presence, and that nearly half of whom he did procure to depose, are the relations of Glover; a circumstance on which the deponents are entirely silent. In addition to this, he is proved by one of those persons to have altered and misstated his testimony. Surely his character is very far from receiving any support from depositions thus taken. We have also produced a record from Delaware County court, which, though it may not prove him guilty of forgery, yet contains evidence charging him with an act almost equally dishonorable. From this accumulating weight of disgrace, thus increasing with his progress in depravity, he again finds it necessary to escape, and wisely determines to fix upon a still more distant residence. The last two or three years of his life have been spent in the State of Ohio, and, during that period, I shall be able to show that he has reached a height of profligacy even beyond the promise of his former years. The numerous witnesses from Cincinnati, though not particularly questioned as to his general character, (being examined to impeach his credit on other grounds,) yet show the degree of estimation in which he is there held; and thus, sir, we flatter ourselves with having produced the most ample proof that truth is not to be expected from this witness; that he would not shrink from perjury, when prompted to accomplish a favorite object. That such an object was presented to him on this occasion; that the inducements to his crime were considerable, is obvious. We are informed by many of the deponents from Cincinnati, particularly by Mr. Burnett and Mr. St. Clair, that he had long felt and evinced the most malignant animosity towards Mr. Smith. The existence of this disposition in himself, and others associated with him in the same dishonorable cause, is further evidenced by the base and unmanly means they have used during this inquiry. I allude, sir, to their refusal to give evidence for Mr. Smith, and then secretly sending their depositions to the Senate; conduct in every respect worthy of the friends of Elias Glover; and also to those anonymous slanders which have been forwarded (doubtless from the same source) to almost every honorable member of this House. Of these deponents, and the support their testimony attempts to give to the character of Glover, little need be said. I cannot suppose it possible the Senate will receive this evidence, or, if received, that any reliance will be placed upon it. The profligacy, however, of the principal one among them is so palpable and audacious that it deserves some little notice; I mean William McFarland, the friend to whom Elias Glover alludes as having been present when Mr. Smith acknowledged his participation in the conspiracy. This man, sir, has had the effrontery (after refusing to answer Mr. Smith’s interrogatories) to send on to the Senate an affidavit in which he states that Elias Glover’s deposition is substantially correct; yet he had been sworn at Richmond, and we have his affidavit, and again at Chilicothe before the grand jury, and we have a statement of his evidence. They afford the most direct contradiction of his present deposition that can be conceived. Unless Mr. McFarland then will condescend to tell us, how are we to ascertain which is true and which is false? As it now stands we have, in addition to his declarations to General Gano and Mr. Burnett, one or two of his depositions acquitting Mr. Smith, to set off against the one which accuses him. Of the other deponents I shall say no more than what appears from their own representation, (and nothing more harsh could well be said of them,) they are the friends of William McFarland and Elias Glover. To have obtained the enmity of men disgraced by such a friendship is no small honor to Mr. Smith.

However conclusive this proof of the general character of this witness may appear, it yet constitutes but a small part of the infamy with which we have overwhelmed him. We have shown this capacity for perjury, and the disposition he must have felt to exert it on this occasion. I now proceed to point out the actual commission of it, in the most wilful, premeditated, and repeated instances. This witness, it seems, appeared before a grand jury at Chilicothe, in January last, which body had the penetration to discern his falsehoods, though no testimony was produced to discredit him. One of the jurors, Mr. Ethan Stone, has stated to us in his deposition the substance of his examination on that occasion, from his notes, which he tells us he was very particular in taking. His statement is also corroborated by General Gano and Colonel Armstrong, who were members of the same jury. We are thus informed that Elias Glover on that occasion declared “that he had never published or offered for publication any piece in ridicule of the measures taken by Government to arrest the progress of Burr’s conspiracy.” Of the falsehood of this assertion we have produced the most undeniable evidence.

The editor of the Western Spy, David L. Carney, deposes that Glover brought him such a piece which he refused to publish. Ephraim Morgan swears that he was present at the time, and confirms this statement. If Mr. Glover is disposed to dispute the point with these two witnesses, we will call a third, to whom, however objectionable, he must submit. This is no other than himself. He told Mr. Arthur St. Clair (as that gentleman states in his deposition) that “he had published one piece, ridiculing the measures taken to stop Burr, and had written another (which he offered to show him) which the printers had refused to publish.” He again told the same to Mr. Jacob Burnett, and urged him to join in squibbing the measures of Government. Can anything be more complete and confounding than this detection? Let us view another instance. The same grand juryman informs us that during his examination he declared, “that he never had any correspondence with Colonel Burr;” these are the words taken from Mr. Stone’s notes. And yet he tells Captain Nicholls, whose deposition we have produced, that he had written to Burr, and that he daily expected to hear from him. In addition to this, the testimony of Mr. George Russell is before the Senate, who is personally known to several of the honorable members of this House, who declares that Glover actually gave him a letter to carry to Colonel Burr, with injunctions to burn it if he did not see him.

I might, sir, point out other instances of falsehoods equally gross, but it cannot be necessary to take a particular notice of each. I shall therefore only call the attention of the Senate to a circumstance which exhibits a number of them in one general point of view. He appears from his own testimony to have been the person who furnished Matthew Nimmo with his information relative to Mr. Smith’s participation in the conspiracy. Now, the information he gave Nimmo should certainly agree with that which he now gives us in his deposition. Yet they are essentially different, nay, even directly contradictory, as is obvious from comparing them.

But, sir, independent of all these circumstances, I would ask nothing more to discredit the witness than the internal evidence of falsehood which his deposition bears. What can be more incredible than the facts he states? Mr. Smith is an associate in Burr’s conspiracy, and yet never commits an act which evinces the least participation in it, never affords it the least support, never endeavors to interest his friends and dependents in it, but would have remained wholly unknown and unsuspected but for his disclosure to Elias Glover; and this confidant, whom he thus highly trusts, was at that very moment, and before and afterwards, his open and irreconcilable enemy.

He further tells us that he received this communication “under the strictest injunctions of secrecy; that to divulge it on any occasion less pregnant with evil would reflect infamy and disgrace upon his character and conduct, and that he therefore balanced between his honor and his patriotism, before he could divulge it.” Now, can Mr. Glover reasonably expect any one to believe this? And if we were thus to indulge him, how much reputation would he save by it? Does a man of character ever allow any circumstances, however “pregnant with evil,” to induce him to receive a communication, promise to conceal it, and then divulge it? Where, sir, does he find a sanction for a doctrine so absurd and detestable? Does that sacred volume which he has dared to profane with his touch, and thus openly contemns, allow any such dispensation from the eternal and immutable laws which it awfully commands us on all occasions to observe? Is any such ridiculous exception to be there found, which shall justify a man in violating the plainest rule of morality and becoming a scoundrel for the good of his country? But even if this pretext could account for his disclosure to Nimmo, in November, it can be no pretence for his afterwards voluntarily and certainly unnecessarily reducing it to an affidavit in February. Some delay in making out this deposition might be necessary, from the nice balance which he tells us he was adjusting. With his honor in one scale and his patriotism in the other, it is not wonderful that it should take him a month or two to ascertain which of these two straws was the heaviest; but it is singular that his patriotism should not preponderate till all symptoms of danger to his country had disappeared--till the conspiracy was completely defeated.

There are, sir, two other depositions relative to the credit of this witness which I had intended to notice. Mr. Longworth details to us a conversation held between him and Glover, early in February, and just after he had made his affidavit. Glover then told him that he had not “acted against Mr. Smith;” that “he thought him unjustly accused,” and believed “he had no share in the conspiracy.” In the April following, Dr. Lanier’s deposition informs us of an interview (at which he was present) between Mr. Smith and Glover. How strongly marked is the conduct of each on that occasion. In Mr. Smith we see the firmness of an innocent man, indignantly daring forth his slanderer, and in the other a soul as contemptible for its meanness as detestable for its vices, descending (if indeed such a creature can properly be said to descend to any thing) to the grossest falsehoods and most humiliating prevarications.

I have done, sir, with this witness. I fear I have detained the Senate unreasonably upon this subject. I therefore leave him to that contempt which I trust he will meet with here, and to that punishment which public justice will hereafter inflict upon him. For should he escape from this, I have no doubt it will be owing more to his own agility than to the crippled condition of our courts. Nor shall I have much apprehensions of his acquittal, even if he is allowed to plead that “he is possibly innocent.”

I now proceed to make a few hasty observations upon the circumstantial testimony offered by other witnesses in support of this accusation, and first by Peter Taylor. The circumstances principally relied on in the statement of this witness is the conversation which he details between Mr. Smith and himself, and particularly the charge which Mr. Smith, he says, gave him “not to go to a tavern, lest the people should sift him with questions.” Admitting this conversation to be correctly repeated, nothing can be more unfair and unreasonable than to infer from it that Mr. Smith was concerned in the conspiracy, or even acquainted with its object. May it not be more properly attributed to his knowledge of the public agitation, which Mr. Burr’s movements had excited, his belief that they were innocent, and his apprehensions that this agitation might be dangerously increased by Peter Taylor’s representation and exaggerations of Mrs. Blannerhasset’s alarm. There are various other motives equally pure to which this direction might have been owing, and it would therefore be unjust to attribute them to a criminal one. It could not have arisen from any fears in Mr. Smith that this man would disclose any of the plans of the conspirators. He had himself already “sifted him with questions” and could learn nothing, and therefore could not have supposed that others would be more successful.

But, sir, this admission is fully as unreasonable as the conclusion attempted to be drawn from it. We do not impeach the character of Peter Taylor; we do not say that he has wilfully misrepresented this conversation, but we deny him that degree of intelligence, recollection, and accuracy, so essential to a witness who is to repeat a conversation with necessary correctness. Can this honorable House infer guilt from words, without very strong evidence that they are accurately related? The least variation, the suppression or addition of a syllable, may make the most material difference. May he not have misunderstood Mr. Smith? May he not have forgotten parts of the conversation, and be indistinct and confused in his recollection of it? We have, sir, among these depositions a most remarkable instance, in which two gentlemen, both respectable and intelligent, undertake to detail to us the particulars of one of Mr. Smith’s conversations, (I mean Col. Taylor and Dr. Sellman,) and their statements are directly contradictory. Let us now look for a moment at the deposition of this witness, and see whether it bears those marks of accuracy which should entitle him to attention. Besides that gross stupidity so observable in every sentence of it, there are several of the most palpable misstatements contained in it. First he tells us that Dudley Woodbridge was on the bank of the river when the boats left the island, after midnight, and yet that person and the man who slept with him, depose that he was not out of bed after 10 o’clock. Again he states, in his last deposition, that when he went to Mr. Smith’s they had never seen each other before, and yet on his examination at Richmond he had stated that Mr. Smith knew him; and this strange contradiction is made, although the statement of his former evidence, in the Richmond Enquirer, was but the moment before read over to him, and acknowledged to be correct. There is one other remarkable instance, which shows that he cannot even remember with any tolerable distinctness his own conversations. On the statement of his evidence at Richmond he tells us that when Blannerhasset and himself were returning to the island, after he had left Mr. Smith’s, he was urged by him to accompany him in this expedition, that he refused all the honors offered him, unless he should be permitted to take his wife with him. Now, sir, he could have said no such thing to Blannerhasset, for his wife had been dead for a month or two; he himself admits in his subsequent deposition that she died in September, and this conversation took place late in October or early in November following.

It is totally immaterial to what cause these palpable misstatements are to be attributed; they essentially affect his accuracy as a witness, and show how little reliance is to be placed on this part of the evidence.

There are various other circumstances which have been collected by the malignant industry of Mr. Smith’s enemies, in that strict scrutiny to which all his actions have been subjected, and these have been exaggerated and distorted till they were made to bear some suspicious appearances. Of these it can be necessary to say but little. I rejoice that Mr. Smith has been enabled to present so complete and satisfactory an explanation of them. Of his entertaining Colonel Burr at his house I shall say nothing, since if that fact merited consideration, it would equally criminate most of the respectable people in Cincinnati, and particularly Colonel Taylor himself, who informed us that he waited on Colonel Burr and invited him to dinner.

But it is said he corresponded with Colonel Burr; true, sir, but in what manner? Not in cipher, as it is well known the associates in this project made their communications to each other; or in any secret manner whatever. Mr. Smith immediately and publicly speaks of it. We have offered the depositions of many of the first characters in that country, to whom Mr. Smith showed these letters just after they were written; of one particularly who was present when he received Colonel Burr’s answer from the post office, and to whom he instantly handed it. We have produced to you these two letters and they contain nothing criminal; nothing but what persons in their situation and with their views might be supposed to have written. Nor can there be the least pretence for supposing they were fabricated for the purpose of removing suspicions. For at the time they were shown by Mr. Smith he was suspected by nobody, nor had he any reason to suppose he ever should be.

He has been also charged with receiving and forwarding despatches from Blannerhasset to Burr. This circumstance is mentioned by Col. Taylor, as one which operated to Mr. Smith’s disadvantage. Now, sir, he has shown the nature of these despatches by the depositions of persons who were requested to convey them, and by others who saw them opened, and by many to whom Mr. Smith openly spoke of them. They contained a silk coat and a note from Blannerhasset requesting him to forward it to Mr. Burr.

Equally unreasonable were the conjectures formed from his having accepted and paid a draught of Colonel Burr’s. To this circumstance we have offered every explanation of which it was susceptible. We have proved by various depositions that it is usual for persons travelling in that country to deposit their money in safe hands and afterwards draw for it, and we have clearly shown that this draught must have originated in that manner from Mr. Smith’s mentioning it at the time. General Carberry informs us that about the time of Colonel Burr’s departure, Mr. S. told him that he had left in his care a part of his baggage and a sum of money. All these circumstances, Mr. S., if guilty, would have endeavored to conceal; and yet it appears that the first information of them, and that too immediately on their occurring, is uniformly derived from himself. Neither can his guilt be inferred from his son’s being the bearer of a letter to Blannerhasset’s island, even if it were admitted (of which, however, there is not the least shadow of proof) that he knew the contents of the letter he carried. Mr. Smith has proved that he was then, and had been for some time, absent from home, and that he expressed strong disapprobation of his son’s imprudence upon his return.

Another incident in this string of vague possibilities is his happening to go to Frankfort at a time when Colonel Burr was there. He has explained the motives of this journey. Mr. Kelly, Mr. Hart, and several other gentlemen depose to the business which occasioned it.

His absence from the United States at the time the indictment was found against him, is, I understand, also relied upon. If this indeed appeared to have been owing to any desire to avoid an investigation into his conduct, if he had sought to remain within the Spanish territory, and had been unwillingly brought forward to answer this charge, it would indeed have been a circumstance amounting to proof infinitely stronger than all which this inquiry has produced. But if his conduct was directly the reverse of this; if he was carried there by important and indispensable engagements; if, when there, informed of the indictment, he immediately relinquished his business, and took the most prompt and decided steps to return and face the prosecution, and did so return, (of all which he has produced the most conclusive evidence;) then, sir, this circumstance not only ceases to afford any presumption of guilt, but clearly evinces his innocence.

Having now, sir, endeavored to show the futility of the testimony adduced to support this charge, it might be sufficient here to rest our defence of the honorable member accused. But, sir, though more may be unnecessary, I rejoice that more is in our power; that we have been enabled not only to destroy the force of the proof offered to criminate him, but to exhibit the most complete and direct evidence of his innocence. I am sensible, sir, that I have trespassed greatly upon the indulgence of this honorable Senate. I shall not, therefore, take that view of this part of the case which its importance deserves; but will only beg leave to suggest a few considerations which appear to my mind unanswerable, which will render all doubt upon this subject (if indeed a doubt yet remains) utterly impossible.

In the first place, to what but his innocence can it be attributed that such numbers of the conspirators knew nothing of his association with them? We have produced the depositions of several who appear to admit that they had been induced to participate in this enterprise, and they declare their ignorance and disbelief that Mr. Smith was in any way concerned in it. Nay, sir, let us look at the declarations of their chief, Colonel Burr himself. He has various communications with persons whom he was desirous to bring over to his views, many of which are detailed to us in the report of the evidence at Richmond. In these he makes the most flattering representations of his prospects, endeavors to show the adequacy of his means, the number and consequence of his adherents. Among these he never mentions Mr. Smith, though there was no man, in the whole Western country, the importance of whose co-operation would have been more obvious. Here is one striking instance of this, which I beg leave to mention. Lieutenant Jackson deposes that when Colonel Burr gave him the draught on Mr. Smith, he directed him to call on General Tupper, to whom he referred him for information relative to the objects of the enterprise. Now, sir, if Colonel Burr had known Mr. Smith as one of his associates, why should he have been silent on this occasion; why should he not have allowed Mr. Jackson to get his information from Mr. Smith, when he presented his draught, without proceeding to General Tupper?

All the other conspirators seem equally ignorant of Mr. Smith’s participation. When Bollman and Swartwout communicated with General Wilkinson, in the most unreserved manner, they seem to know nothing of it; they give him no intimation that the army contractor, the very man who was supplying his troops with provisions, had any connexion with their schemes.

Let us even descend to Glover and McFarland; that these men were engaged in this expedition, after the proofs we have produced, cannot be questioned. And what are they able to say to criminate Mr. Smith?

If they were all living in the same place, associates in the same conspiracy, is it possible they would not have had frequent interviews? Would they not have had it in their power to produce some act, or at least some avowal to others, by which his guilt could be proved, beyond the possibility of denial? Yet we hear Mr. McFarland frequently acknowledging and twice even swearing that he knew nothing of Mr. Smith’s connexion with it; and all that their malignant efforts have enabled them to collect, is one solitary conversation depending wholly upon the unsupported assertion of Elias Glover.

Thus, sir, it appears that if Mr. Smith was a party in this conspiracy, the persons from whom he most studiously concealed it were those who were associated in the same project. Neither are they more fortunate who were particularly engaged in watching the progress of this enterprise and ascertaining who were its partisans. General Gano states that he used various means to determine whether the reports relative to Mr. Smith were well founded, and he satisfied himself of his innocence. He also directed Major Riddle to assist this inquiry; that officer reported to him that he had frequent conversations with Mr. Smith, and had endeavored to ascertain whether he knew anything of Burr’s plans, and was convinced that he did not. Even Colonel Taylor, with whom these suspicions were strengthened by the conversation relative to a disunion, which he thought he had heard from Mr. Smith, was yet so far from discovering any thing to confirm them in his inquiries, that he calls on Mr. Smith to aid him in procuring information, and frequently declares (as General Carberry’s deposition informs us) that he did not believe Mr. Smith was an accomplice.

In the next place, sir, how can Mr. Smith’s guilt be in any manner reconciled with his conduct in opposing the progress of the expedition. Major Martin, Dr. Stall, General Gano, Mr. Totten, and numerous other witnesses, prove that it was principally owing to Mr. Smith’s exertions that any effectual support was rendered to the measures of Government. When the President’s proclamation was received at Cincinnati, it seems there was no means of arming the militia. The orders to the keepers of the arsenal, to deliver out the public arms, had been neglected, and he persisted in refusing to deliver them without. At this juncture Mr. Smith, with that earnestness and decision which so strongly mark his character, crosses the river at midnight, offers his bond to Major Martin, in the penalty of $10,000, to indemnify him; procures the arms, and delivers them to the officers; prepares barracks and supplies for the militia; furnishes one of his own boats, and in short makes every arrangement to obstruct the passage of the expected armament.

It may perhaps, sir, be here objected, that these circumstances rather prove that Mr. Smith then abandoned the enterprise than that he never participated in it. That the vigilant measures taken by Government alarmed him, and that therefore, hopeless of its success, he sought by a zealous opposition to escape detection. However plausible this may seem, the least reflection will show how unreasonable is this suspicion.

How does it appear that the situation of the conspirators was at this time more unpromising than at any former period? They had thus far proceeded without meeting any obstacles; their plans were arranged and ripe for execution; they were hourly expected to embark. And what was there so alarming in the measures taken to oppose them as to strike a panic into Mr. Smith and subvert his resolutions? The militia were called out it is true, but they were without arms. Their officers inform us that they could not even station a guard upon the river. I should rather suppose that this circumstance would have been considered as more auspicious than any thing he could have expected. Nor does it appear that this effect was produced in the minds of any of the party. For even at a subsequent period, and after the militia, by Mr. Smith’s exertions, had procured arms, we find Captain Nicholls at Cincinnati still adhering to their views and far from despairing. Nay, even Elias Glover, (whose courage appears from Dr. Lanier’s deposition to be about equal to his veracity,) and who doubtless was as ready as any one to renounce his associates when he saw them sinking, is seen at the same period persisting in his adherence to them. He tells Captain Nicholls to hasten his departure lest the guard should stop his boats, declares that he will shortly follow, and informs him that he had sent off an express to the party at the island. There is one other circumstance that totally overthrows this suspicion. If Mr. Smith had thus not only deserted but opposed his associates, would it not have excited their resentment? And would they not have revenged themselves for his treachery by disclosing his participation, and showing that he was equally guilty with themselves?

It cannot be necessary to contrast this conduct with that which we might expect to find in Mr. Smith, if, most unfortunately for his country and for himself, he had really been concerned in this enterprise. It is well known that the circumstance which first excited the suspicion of Government were the unusual preparations made by Colonel Burr and his party on the Western waters. From these suspicions they would have been perfectly secure by obtaining the co-operation of Mr. Smith. His contracts for the supply of the army, and his engagements to prepare boats for the navy, would have enabled him to collect any quantity of provisions and materials, and place them in suitable situations without exciting the least attention: and whenever they were ready to act, he might in a moment have stopped the supplies of your armies, and suddenly directed all his resources to aid in the most effectual and fatal manner the objects of the combination.

Thus, sir, in short, it appears that Mr. Smith has not merely forborne from the commission of these acts, which if guilty it is almost certain we should have discovered in him, but has pursued a most decided and distinguished course of conduct, utterly unaccountable upon any other presumption than that of his innocence.

I will now, sir, conclude by adding to these considerations those which naturally result from the view which the testimony affords us, of Mr. Smith’s character and situation in life, and the various honorable and lucrative employments committed to his trust. These alone, if properly considered, will be found more than sufficient to outweigh all the circumstances adduced against him. I will not undertake to point out the objects of Colonel Burr and his partisans, but am very willing to admit the correctness of the information collected by the honorable committee on this subject, and so eloquently detailed in their report. They are there represented as having been only prevented by the “vigilance of Government and of faithful citizens under its direction from a speedy termination not only in war, but in war of the most horrible description, in war at once foreign and domestic;” that “the debauchment of our army, the plunder and devastation of our own and foreign territories, the dissolution of our national Union, and the root of interminable civil war, were but the means of individual aggrandizement, the steps to projected usurpation.”

Now, sir, is Mr. Smith the sort of man to whom conspirators, who were in their senses, would have proposed such a scheme as this? Would he have been solicited to join in the dismemberment of the Union, whose interest was so materially connected with its continuance, the profits of whose employment wholly depended upon it? Would he have been asked to join in “a war of the most horrible description,” who is represented as enjoying every domestic comfort in the bosom of a happy and numerous family? Would he be called upon to unite in a scheme of plunder and devastation, who had every reason to be satisfied with his present possessions, who had so much to risk and so little to gain from civil commotion? Would he have been called upon to make all these sacrifices to the madness of ambition who was already distinguished even beyond his wishes?

Surely, sir, this is the first time that robbers ever made offers of partnership to the man whom they were about to plunder--that incendiaries ever called upon him for assistance whose house was to be destroyed by their flames.

No man in the whole Western country would have been more certainly ruined by the success of this project than Mr. Smith. There is therefore no man from whom it would have been more studiously concealed. To a disposition of this sort I think it not at all improbable is to be in some degree attributed the circumstance of Colonel Burr’s stopping at his house. As Mr. Smith’s guest he would have it in his power to say just as much as he pleased of his plans, and no more. In such a situation he would be less liable to the importunity of inquiries.

Let us, sir, for a moment fancy ourselves present at a consultation upon this subject between Colonel Burr and his confederates at Cincinnati; and let us suppose that that gentleman had so far lost his usual discernment, had felt such confidence in his personal influence as to presume that he could seduce Mr. Smith from his interest as well as from his duty. After inquiring about Major Kibby, (whom it seems he was anxious to see, and who is represented to be in distressed circumstances,) let us suppose that he mentions Mr. Smith. What would his associates, Glover and McFarland, say to this? Would they not fear, that as Mr. Smith was their enemy, he would be tempted to inform against them? Would they not also know that if Mr. Smith assented to the proposal he would hold his rank in the expedition much above them, and would have it in his power materially to affect their interests? Would they not at least have thought it highly dangerous to trust such a secret to a man so connected with the Government they were about to oppose? These considerations would instantly have dictated a most decided reply. They would have said “you can have no hopes of Mr. Smith, his interests are too obviously opposed to our designs; he is too well satisfied with his present situation to consent to the change we contemplate; he is too highly trusted and favored by the Administration. He is,” they would add, (repeating an expression used by Glover on a former occasion,) “‘a damned army contractor and gunboat builder;’ he makes too much by the present system of things to be trusted with a scheme for overturning it. No, sir, from him our plans must be concealed; he is easily deceived; tell him a plausible story about your settlement of lands, show him your Washita grants; tell him his sons are fine, promising young men, and offer to take them under your patronage.” The force of these observations it would have been impossible to evade.

And, sir, whatever Colonel Burr’s designs may have been, to whom does it appear that he actually did communicate them? To what kind of men does he apply to procure partisans? Why, sir, like a celebrated character of antiquity, to whom he was long ago compared, it is always the discontented, the embarrassed, the turbulent, the idle, the ambitious and the enterprising. Nor does it appear that even to all these he fully explained himself. He had a variety of schemes suited to every taste, to every possible occasion. But among this mixed assemblage of characters, collected by these means, there is not one to be found who had not some strong and ruling passion to which he could successfully apply himself. Thus to the romantic enthusiasm of Dr. Bollman, he would expatiate on the glorious and benevolent attempt to liberate, enlighten, and exalt a nation of slaves. To the youthful heroism of Swartwout he would paint, in all their fascination,

“The plumed troop and the big wars, That make ambition virtue!”

And turning from these he would address himself to such creatures as Glover and McFarland, and to them he would talk of plunder. But, sir, what motive could he expect to find in the breast of Mr. Smith that would prompt him to listen to a project that assumed any aspect of disunion, that discovered the least mark of treason, that bore even the most distant indications of “war and devastation?” What air-built castle could he picture to him to tempt him to overturn the fair and substantial fabric of his honors, the solid foundation of his happiness?

WEDNESDAY, April 6.

The PRESIDENT communicated a report of the Secretary of the Treasury, respecting roads and canals, prepared in obedience to the resolution of the Senate, of the 2d of March, 1807; which was read.

Case of John Smith.

The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr.

Mr. SMITH attended, together with Messrs. ROBERT GOODLOE HARPER and FRANCIS S. KEY, counsel on his behalf.

Messrs. RUSSELL and GARDENIER, Representatives from New York, were examined as to the credibility of several of the deponents on the part of Mr. Smith.

Mr. HARPER then rose and addressed the Senate, first, in a legal argument sustaining the views of his associate counsel; and then proceeded:

If, therefore, Mr. President, we had no defence, or only a weak one, on the facts in the case, I should insist that this prosecution, being for an offence cognizable by indictment, and resting on evidence which the law excludes, ought to be dismissed. Standing, however, as my client does, strong on the facts; holding in my hand abundant proof of his innocence, I shall by no means rest his defence on this legal ground, impregnable as I deem it; but having entered in his name, and in my own, as one of the American people, this protest against a proceeding which I regard as a violation of our constitutional privileges, I now proceed to investigate the evidence adduced in support of the charges against Mr. Smith, and to contrast it with that whereby his innocence is completely established.

I am to premise that the charge against Mr. Smith is, that he was connected with Colonel Burr in the late conspiracy. This connection is alleged as the sole ground of expulsion; and it is attempted to be proved in various ways.

1. By the conversation stated by Elias Glover and McFarland.

2. By the facts stated by Peter Taylor.

3. By the conversation stated by Major Riddle.

4. By the conversation stated by Colonel James Taylor.

5. By Mr. Smith’s journey to Frankfort, in 1806.

6. By the bill drawn by Colonel Burr, on Mr. Smith, in favor of Jacob Jackson.

7. By that drawn on him by Colonel Burr, in favor of Belknap.

8. By a supposed contradiction between Mr. Smith’s statement respecting the settlement of the Washita lands, in his deposition before Matthew Nimmo, and the facts which appeared in evidence at Richmond. And

9. By a supposed similarity between the style of the conversation stated in Glover’s deposition and that of Mr. Smith’s own deposition before Nimmo.

By some of those proofs and circumstances, or by all of them taken together, it is contended that a criminal connection between Smith and Burr in the late conspiracy is established; and it is therefore incumbent on me to consider them all; which I shall proceed to do in the order in which they have been stated, and with as much brevity as the extent and variety of the matter will admit.

As to the conversation stated by Elias Glover, I admit that, if it did take place, it furnishes sufficient proof of a criminal participation by Mr. Smith, in the enterprise of Colonel Burr, and sufficient ground for a vote of expulsion. We are, therefore, to show that Glover’s deposition, even when bolstered up by the furtive skulking affidavit of his confederate, McFarland, is entitled to no credit. This we undertake, and unless we do it in a satisfactory manner, I admit that we fail in our defence.

And, first, we rely upon his bad character generally. To prove it, we trace him from Newtown, in Connecticut, the place of his birth and education, to Brookfield, and from thence to Delaware County, in the State of New York. Five witnesses at the first of those places, seven at the second, and twenty-one at the last, many of them proved to be men of note and character where they live, and none of them proved or even stated to be otherwise, have deposed that Elias Glover is a man of general bad character. Several of them add, that he is not entitled to belief on his oath. Now, let me ask, against what man of good character could so many of his neighbors and acquaintances be brought to give such testimony? The fact alone that so many men, who knew him in the places where he has resided, consider him as a man of bad character, affords plenary proof that he is so. These witnesses do not depose to particular facts, but they speak of his general reputation, which they state to be a bad one. This testimony is by no means rebutted by the depositions produced on behalf of Glover. The deponents state that they never heard any thing against his character. This may be true, and yet his character a very bad one. But, take these depositions in their most liberal construction, and what does the whole testimony amount to? Certainly to this, that one-half of his neighbors consider him as a knave, and the other half admit that, for any thing which they know, or have heard, he may be an honest man. Surely, this is too equivocal a reputation to entitle the ex parte deposition of its possessor to belief in a case of this nature.

It must further be remarked, Mr. President, that the bad opinion which these numerous witnesses express of Elias Glover’s reputation, does not and cannot proceed from party feelings or political animosity; for the principal witnesses, and those who have spoken in the strongest terms, are proved to be of that political party to which Glover has taken so much pains to prove that he belongs. They, as well as Glover and McFarland, are proved to be most excellent republicans; and they have the advantage of being proved also to be men of good character.

If we pursue Elias Glover in his next and last emigration to Cincinnati, in the State of Ohio, we shall find that the bad character which he acquired in early life, attends him still in his riper years. Col. James Taylor, who was examined at the bar of the Senate, stated that there were two parties in Cincinnati, “one of whom spoke well of Elias Glover, and the other very unfavorably.” These two parties are not the two political parties which divide our country. On the contrary, they both appear, with the exception of some very few individuals, to be composed of exceedingly good democratic republicans. What, then, were these two parties? One, I answer, was composed of that portion of the citizens of Cincinnati, who espoused the interests of Mr. Smith; and the other consisted of those who had united themselves with his persecutor, Glover. The first speak “very unfavorably” of Glover; and the last, as might be expected from his associates and coadjutors, speak well of him.

And who, let me ask, belong to the party which speaks very ill of this man? It must be answered, General Gano, General Carberry, Mr. Burnett, Mr. Stone, Dr. Sellman, and a number of others, who have been proved to be men of the first respectability in that part of the country. Has any such favorable account been given of those who speak well of him? Far from it. We know but little of them, and that little is very little to their honor. Some of them, when called on by Mr. Smith to give evidence in this case, refused to be examined. Some of them are proved to have been connected with Glover, in the enterprise of Colonel Burr. And McFarland, the chief of the party, was extremely active and zealous in obtaining recruits for that enterprise. When he and Glover found that the enterprise had failed, they took refuge, as is customary, in outrageous patriotism; became the zealous hunters-up and denouncers of treason; and, to use the language of Dr. Goforth in his deposition, attempted to lay the body of John Smith as a pedestal whereon to rebuild their own fallen reputations. Such men as these, no doubt, speak well of Glover. Be it so. But, while General Gano, Doctor Sellman, Mr. Burnett, and almost every other respectable man in the place, speak very ill of him, I shall take the liberty of contending that “cœlum non animum mutavit;” that he has not changed his manners with his residence; and that he still merits and enjoys at Cincinnati that opprobrious distinction to which the achievements of his early life gave him a title.

But, Mr. President, it is not on the general bad character of this man, however clearly established, that we solely rely, for destroying his credibility. I shall next proceed to show, that he has been guilty of wilful and deliberate false swearing in no less than three instances.

Being interrogated before the grand jury at Chilicothe, whether he had ever written and offered for publication, a piece ridiculing the measures adopted by the Government for suppressing Colonel Burr’s enterprise? he answered on his oath that he had not. He was, perhaps, not bound to answer, but he did answer, and answered in the negative. This is stated in the deposition of Ethan Stone, who was a member of the grand jury, and has been proved at your bar to be a man of very respectable character.

And yet, two printers, Samuel L. Browne and D. L. Carney, connected with Glover in politics, expressly swear that he did bring such a piece to them for publication, and that they refused to admit it, because of its tendency to bring those measures of the Government into derision and contempt.

Again: on being further interrogated by the grand jurors, he admitted that he did write such a piece, but that it was intended to ridicule the conduct of the officers who had been appointed to carry the measures of Government into execution, and not the measures themselves. Yet, Mr. Burnett swears that Glover confessed to him that he had written the piece for the express purpose of turning the measures of Government into ridicule, and offered it to him for perusal.

Here could be no mistake. Either Glover or the other witnesses have sworn to a falsehood. When their characters are contrasted with his, there can be no hesitation where to fix it.

He also swore, before the grand jury, that he had never corresponded with Col. Burr. This question, also, he was not bound to answer; but, to prevent suspicion, he did answer it in the negative--so says Gen. Gano; and yet George Russell, a man admitted to be respectable and intelligent, swears that, in the fall of 1806, Glover gave him a letter, to be delivered to Col. Burr, with directions to burn it if he did not see Burr. This proves that he did correspond with Colonel Burr, because the letter was too important to be delivered by Russell to any but Col. Burr himself.

And this testimony is supported by that of Captain Nicholls, who states, in his deposition, that when he was descending the Ohio, in the command of one of Colonel Burr’s boats, Glover came on board of the boat, and advised him how to proceed with it, so as to elude the officers of Government; and yet this is the man who accuses John Smith of participating in the views of Col. Burr! This is the jealous patriot who swears that he communicated with Colonel Burr for no other purpose, but to discover his views and pervert them!

But, the general bad character of Glover, and the deliberate falsehoods, on oath, of which he has been proved guilty, are not all that we have to oppose to his testimony against our client. That testimony has been positively contradicted by his friend and confederate, McFarland. Glover introduces his account of Mr. Smith’s conversation with him, about Col. Burr’s plans and views, by stating that it took place in the presence of a friend, who accompanied him to Smith’s house. It is fully proved that McFarland was his friend. McFarland, therefore, must have heard the conversation, if it ever took place, and he must have remembered it too, for it is impossible to believe that a conversation so interesting, so remarkable, from such a man as Mr. Smith, and on a subject which then so greatly agitated men’s minds, could pass, in the presence of any man, without taking strong hold on his attention, and sinking deep into his memory.

Let us, then, hear McFarland on the subject of this remarkable conversation, in which Mr. John Smith developed the treasonable character of Col. Burr’s enterprise, and confessed his own participation.

We first find him conversing with Gen. Gano, to whom, long after this conversation between him, Smith, and Glover, is stated to have taken place, he declared that he was wholly ignorant of Burr’s plans, which could not have been the case had he heard such a conversation as Glover relates. He also stated to Gen. Gano, at the same time, that Glover’s statement on this subject was incorrect; and he told another witness, Mr. Longworth, that he knew nothing of Col. Burr’s plans, or against Mr. Smith; which he could not have said with truth, had such a conversation as Glover relates, taken place in his presence.

But all this it may, perhaps, be said, is mere conversation; and a man, when not on oath, may easily be supposed to deny a fact, when it tends to implicate himself in guilt.

Let us, then, hear McFarland on oath. When examined at Richmond, on the trial of Col. Burr, though sworn to tell the whole truth, he says not one word of this most remarkable and important conversation. And lately, before the grand jury at Chilicothe, when interrogated as to this very point, he declared that he knew nothing of the matter--that he had some faint recollection of a conversation between Mr. Smith and Mr. Glover, on the subject of Colonel Burr’s enterprise, but could recall to his mind none of the particulars. This fact, and also the admission of Glover and McFarland, that McFarland was the friend stated by Glover to have been present at this conversation, are proved by Ethan Stone, General Gano, and John Armstrong, three members of the grand jury, in their joint deposition of February 20, 1808.

Now, Mr. President, let me ask whether any man can believe that such a conversation took place, in the presence and hearing of Mr. McFarland; that such confessions and disclosures on this most interesting subject were made by Mr. Smith; and that McFarland had lost all recollection of them, when examined before the grand jury, in January last? I answer, that it is impossible; and that McFarland’s testimony, therefore, amounts to a flat contradiction of Glover’s on this point.

And let it be remembered, that when Mr. Smith, under the order of the Senate to take testimony for his defence, summoned this same McFarland to give evidence on these points, and put questions to him for the purpose of obtaining a full explanation, he positively refused to answer. I hold in my hand the summons, the proof of its service, the questions of Mr. Smith, and the magistrate’s certificate of McFarland’s refusal. This wretch, who now appears among the accusers of John Smith, when called upon to meet his intended victim face to face, and undergo the scrutiny of a public examination, shrunk like a villain and a coward from the investigation. Eager to destroy Mr. Smith, but not yet prepared to meet the terrors of direct perjury, his mind maintained a short and faint struggle between the desire of gratifying his malice and some remaining sense of shame; but it was short and faint, indeed. For, within a few days, his malice triumphed, and he made an ex parte, clandestine deposition, not only without notice to Mr. Smith, but carefully concealed from his knowledge, in which, in the teeth of all his former declarations and oaths, he declares that Glover’s statement is correct. And this deposition, conceived in malice and brought forth in perjury, is sent forward to this bar, to bolster up the accusation against our honorable client! What words can describe the mingled emotions of indignation and disgust which such hardened profligacy (fortunately but seldom exemplified) must excite in every virtuous mind!

I here dismiss McFarland, but I have not yet done with his confederate, Glover, whose testimony against my client is further contradicted by Matthew Nimmo, another of the actors in this black tragedy.

I hold in my hand an extract from Nimmo’s communication to the President, bearing date the 28th November, 1806. This extract, which was furnished by Nimmo, and is proved to be in his handwriting, contains some information relative to Mr. Smith’s connection with Colonel Burr; which, as it states, “was communicated by Colonel Burr, in a confidential manner, to the person from whom Nimmo received them.” The person from whom Nimmo received these communications was no other than Elias Glover. This is manifest from Glover’s deposition, made not long afterwards, on the 2d February, 1807, before this same Matthew Nimmo. Now, it will be found, on a comparison, that Nimmo’s statement to the President, founded on Glover’s communication, contradicts Glover’s deposition in two or three essential points. In the communication to Nimmo, he alleges that he received his information, in a confidential manner, from Colonel Burr himself. In his deposition, he swears that he derived it from the conversation of Smith, held in the presence of McFarland. In the statement to Nimmo, he says that Mr. Smith had lately sent down the river considerable shipments for the use of Col. Burr; but in his deposition this most important fact is omitted. In the statement to Nimmo, it is said that “next week two of his (Smith’s) sons descend the Ohio to join Burr’s troops, and Mr. Smith follows shortly after.” In the deposition, Mr. Smith is made to “express his regret that his engagements were such that he could not go immediately himself, which he would do, if the situation of his affairs would permit.”

Strong as these contradictions are, we have still stronger behind. We have seen Glover’s deposition contradicted by McFarland and Nimmo, two of his friends and confederates. We now introduce Glover himself contradicting his own deposition.

Let it be kept in mind, that the conversation stated in Glover’s deposition took place in September, 1805. He swears that, in that conversation, Mr. Smith opened the criminal views of Burr, and his own participation. Now, hear what he said in February following on this subject to Mr. Longworth, one of those respectable witnesses whose testimony we have adduced.

Mr. Longworth, in a deposition made in the presence of Glover, who attended and cross-examined, after stating the substance of a conversation between Glover and himself, relative to Mr. Smith, in February, 1807, proceeds thus: “And, to the best of his (this deponent’s) recollection, he (the said Glover) then declared, in express terms, that he believed Mr. Smith unjustly accused, and that he was not concerned with Burr in his expedition.” Contrast this with the deposition of this same Glover, made February 2, 1807, a little while before the conversation with Longworth, for the purpose of criminating Smith, as an associate of Burr.

And James M. Lanier, another of the witnesses, tells us, in his deposition, that in April, 1807, Glover, when charged by Smith with having given information against him, at first denied the fact, and afterwards, when more closely pressed, confessed that he had given information, but declared that it was nothing of any moment, or capable of operating to the disadvantage of Smith, towards whom he expressed a friendly disposition. And yet, he had then made the deposition which is now relied on for producing the disgrace and ruin of Mr. Smith! Can it be possible that a tribunal composed of men with honorable feelings, will listen for a moment to the testimony of a wretch who thus fabricates in the dark an instrument of destruction, smooths his face to the smile of friendship while he is preparing the mortal stab, and solemnly denies his hellish machinations in order to lull his victim into a fatal security?

The falsehood of this accusation, independently of the direct proof of it which we offer, is rendered in the highest degree probable by the extreme enmity which Glover is proved to have borne towards Smith, and the active endeavors which he had used to injure him. General Gano informs us in his first deposition, that, as early as July 4th, 1806, Glover had abused Smith most virulently in a public oration. Francis Dunlavy states in his deposition, that, in August, 1806, Glover displayed “very great animosity against Mr. Smith.” And Colonel Taylor, in his testimony at this bar, informed us that Glover was “extremely active” in the measures attempted for the injury of Mr. Smith by a party in Cincinnati, in the autumn of 1806. Doctor Sellman, Stephen McFarland, George Jordan, and John H. Stall, furnish us in their depositions with a detail of those measures in which Glover was extremely active. Let us hear what they were.

A meeting of the citizens of Cincinnati was called for some public purpose, and was very numerously attended. Some resolutions were passed by a very large majority. There is a small, but noisy party in Cincinnati, calling itself “The Republican Society.” Some of its members attended, and offered resolutions tending to criminate or vilify John Smith. They were indignantly rejected by a large majority. These zealous republicans, finding themselves out-voted, and being determined, as is usual, not to submit to the majority, when against them, resolved to make sure of their mark by calling clandestinely another meeting, to which none but such as were selected by them for the purpose, and furnished with tickets, should be admitted. The meeting was accordingly held the next evening in the upper room of a tavern, and an attempt appears to have been made, to pass the resolutions which the full meeting had rejected, and which would, no doubt, have been then palmed upon the public as the sense of the “people of Cincinnati”--for republicans love to speak in the name of the people. But the people, in this instance, chose to speak for themselves. They burst open the doors of the conclave, and defeated the scheme. But the most zealous of the patriots were not to be so repulsed. A few of them, and among the rest, the President, and Mr. Secretary Glover, made their escape, met in private, and actually passed their resolutions, which they forthwith published; taking care, at the same time, to suppress the resolutions which had been adopted at the full and public meeting, and of which Glover, as secretary of the meeting, had possessed himself.

Is it difficult to believe--indeed, is it not highly probable, that a man of Glover’s principles and character, who has gone such lengths as these, to injure a person against whom he had conceived a resentment, would stop at a false oath, if likely to effect his purpose? And ought not testimony given under such circumstances, to be viewed with the utmost distrust?

Furthermore, can any thing be more improbable than that Smith should make such a communication to Glover--to Glover his enemy, his public traducer--who, in July, had abused him in a public speech; and in August, had displayed very great animosity against him? What motives for such a choice of a confidant, in an affair on which his character, his fortune, and even his life, might depend? How does it happen, that a man of John Smith’s understanding and prudence, passed over the long list of his respectable and tried friends at Cincinnati, and fixed upon Elias Glover, to whom alone to confide the most important secret of his life? A man with whom he had long been on very ill terms; of whom, as Mr. Isaac Burnett informs us in his deposition, he had long been in the habit of thinking and speaking very ill, and whom, according to the same gentleman, he was much surprised at seeing in his house! All this, it must be allowed, is passing strange; and it will certainly require more than the oath of Elias Glover to make us believe it.

Again: Why make this grave discourse to Glover, concerning Burr’s plan? Was it to enlist volunteers? No! for Smith never appears to have mentioned the subject to any other person; and if he was in Burr’s secrets, he knew that Glover and McFarland were already enlisted. That they were engaged, is proved beyond the least doubt. The evidence on this point is full and unquestionable. They were not only engaged, but very actively and zealously engaged. This, Smith, if he was also engaged, must have known. Why, then, make a grave and mysterious disclosure to two of his confederates, of the plans in which they were mutually embarked? Can any thing be more ridiculous than the idea of a conspirator making a formal disclosure of the conspiracy to two of his associates? This single consideration would be sufficient to prove that the story of this disclosure was invented by Glover, as a screen for his own guilt.

But how does it happen that Smith, in looking round for a confidant, did not think of his friend Kelly, his confidential agent, and the usual depository of all his plans and thoughts? Kelly, to whose character men of the first rank in Kentucky, and amongst them Henry Clay, lately a member of this House, have borne the most honorable testimony, tells us in his deposition, that the highest degree of intimacy and friendship subsisted between him and Smith, who wished to advance his fortune, and was very desirous of assisting him. Yet Smith communicated to him nothing of Burr’s plan. Desirous as Smith felt of promoting Kelly’s fortune, and well acquainted as he was with the benefits of a contractorship, he would hardly have failed to hold out to his friend the brilliant post of contractor-general, or paymaster to Burr’s army; which, especially when the treasures of Mexico should once be occupied, would have been so well adapted to Kelly’s talents, and so fully adequate to all his desires. Smith, however, does nothing of all this; and he not only avoids all mention of these momentous and magnificent schemes to Kelly, but observes an equal silence to his friends, Gano, Longworth, Findley, and Sellman, while he singles out his persecutor and calumniator, Glover, as the chosen depository of this great secret, and very gravely communicates it to him and McFarland, with a full knowledge that they were, already, at least as well apprised of it as himself.

Mr. President, this tale refutes itself. It is impossible for any man of common sense to believe it. But, independently of external refutation, the communication stated by Glover to have been made by Smith, carries internal evidence of its falsehood, by the contradictions and absurdities wherewith it abounds. Can any one believe that a man of John Smith’s intelligence and knowledge told the ridiculous story about the frigate which Mr. Somebody was building, or had completed, in the Southern States, to be employed in this expedition? What! An individual in this country build a frigate, to which so few fortunes are adequate? Mr. Alston, who is probably the person meant, though rich, is well known not to have the means of building a frigate, even were he disposed to expend his whole fortune in such an enterprise. And this frigate, moreover, was to be built in secret. Nobody was to see it; for otherwise, the building of it by an individual, so strange a thing, would have been a matter of notoriety, with which the newspapers would have rung, and which it would have been wholly unnecessary for Smith to communicate to Glover and McFarland, and ridiculous in the last degree to communicate confidentially. A frigate built by an individual, and built in secret! Can any one believe that John Smith, a Senator, and a man of information, could tell so absurd a tale? Sir, a frigate cannot be built in a dry-dock, although it may be kept there. It must be built openly. It must be seen. Its commencement, and its progress, would be as well known on the Ohio, long before it could be completed, as on the Potomac. And to represent John Smith, a Senator, and a man of sense, gravely telling such a tale to Glover, a lawyer, and McFarland, a judge, both men of some information, accustomed to read the newspapers, and therefore knowing the falsehood of the tale, is an absurdity so gross, that one is wholly at a loss to conceive how Glover, who, depraved as he is, by no means appears destitute of understanding, came to admit it into his fabrication. We can account for it only by a reference to the kindness of an overruling Providence, which, for the protection of innocence, sometimes impels guilt to mar its own schemes, by a strange intermixture of folly with its wickedness.

This deposition presents another instance of the same kind, though not equally glaring. Glover swears that this communication was made to him by Smith, under the strictest injunctions of secrecy. And yet he had stated, in the beginning of the deposition, that the communication was made in the presence of a friend, who proves to be William McFarland. This is another instance in proof of the old adage, that “liars ought to have good memories.” Before Glover came to the end of his deposition, he forgot what he had said in the beginning, and thus fell into another of those providential contradictions by which the falsehood of made-up stories is often detected.

Reviewing, then, Mr. President, all these considerations--the bad general character of Glover, at all the places where he had lived; the repeated instances of wilful false swearing which had been fixed upon him; the contradiction of this story by his friends and confederates, McFarland and Nimmo, as well as by himself; his enmity to Smith, and Smith’s ill opinion of him; Smith’s silence on this subject to all his usual confidants and intimate friends; and the inherent contradictions and absurdities of the story itself, I think myself warranted in saying, that the credibility of Glover is completely overthrown, and that his testimony must be laid out of the case.

I come next to that of Peter Taylor, and here I feel myself greatly relieved, in being able to absolve him from the guilt of wilful false swearing. His character is said to be fair, and, for aught we know, is so. We are far from a wish to impeach it. But we shall show that in some of the minute circumstances which he relates, and which are adduced as grounds of suspicion against Mr. Smith, he probably mistakes, and that the others are satisfactorily explained.

In ascertaining what degree of credit is due to an honest witness, especially in relating, after a considerable lapse of time, minute facts, which derive their complexion from circumstances apparently trivial, it is proper, in the first place, to consider his education and habits of life, and to inquire how far they have a tendency to produce that accuracy and precision of conception and language, whereon the weight of such testimony almost wholly depends. Apply this rule to Peter Taylor. Admit him to be perfectly honest in his intentions. But we find him to be an illiterate laborer, sometimes employed as a menial servant. Such a man is likely enough to have a distinct perception, and an accurate recollection, of such facts as he is accustomed to observe. But when he speaks of things out of the usual track of his business, his thoughts, and his observation; when he attempts, at such a distance of time, to relate very minute facts, in which he could not have taken any interest at the time; I ask, if we can implicitly rely on the clearness of his comprehension, or the exactness of his memory? Is it not highly probable that he may have misconceived at the time, or forgotten since, some of those circumstances, apparently minute, on which the character of the whole transaction frequently depends?

But if, in addition to this general reasoning, it should appear that the witness has, in relating other parts of this transaction, committed several mistakes, will it not be admitted that his recollection is too confused or imperfect to command our confidence or influence our decisions? This is the case with Peter Taylor. In his testimony, taken at Richmond, from which the part now used against Mr. Smith is extracted, he relates that, in October, 1806, Blannerhasset, on their return from Kentucky, pressed him to join Colonel Burr’s expedition, and that he consented to go, provided he might take his wife and family; to which Blannerhasset did not consent. On his cross-examination, he states that his wife died in the September preceding. He also relates, in his direct testimony, that when the party left Blannerhasset’s island he saw Dudley Woodbridge on the bank. And it is proved by Woodbridge himself, and by Morris B. Belknap, that Woodbridge was at that time in bed, and was not on the bank at any time during that night. These are small mistakes, but they prove that Taylor’s recollection of minute circumstances, such as those which he details concerning Mr. Smith, cannot be relied on.

The first of these circumstances is, that Mr. Smith, on being informed that he was a servant of Blannerhasset, asked him to go up stairs. This, at first view, might have a suspicious appearance, as if Mr. Smith wished to make or receive some communications which required privacy. But when we learn that Mr. Smith had his office up stairs, where he usually wrote, and that he wished to write a letter by Taylor, the mystery vanishes, and the circumstance stands fully explained.

But he wrote a letter to Colonel Burr. No doubt, Mr. President, a letter from Mr. Smith to Colonel Burr, at that time, has in itself a suspicious appearance. But we are made acquainted with the contents of the letter, and the suspicion disappears. Instead of being a criminal correspondence concerning an enterprise in which they were mutually engaged, it is a letter informing Colonel Burr of the suspicions afloat concerning his plans and movements, and requesting an explanation, for Smith’s own satisfaction. Nothing could be more natural than such a step, on the part of Mr. Smith. Colonel Burr had long been his acquaintance and friend, and recently his guest. He could not, therefore, be indifferent, either on Colonel Burr’s account or his own, to the reports in circulation. These reports were founded on mysterious circumstances, which Mr. Smith supposed could be satisfactorily explained, and he wrote to obtain this explanation. No conduct could be more rational or more commendable. It was kind and candid towards his friend, and cautious towards himself.

The answer which he obtained was well calculated to quiet his alarms. His original letter is not in our power, but we have produced a copy of it. The answer, however, in the handwriting of Colonel Burr, is now in my hand. This letter is no after-thought; no subsequent contrivance for exhibition; for Mr. Broadwell has proved that he saw it delivered to Mr. Smith from the post-office. Let it be attentively read; let the situation of Colonel Burr and of Mr. Smith at that time be considered; and then let gentlemen candidly declare, whether they think that Mr. Smith, after receiving that letter, could regard Colonel Burr in any other light than that of an honorable man, indignantly repelling unfounded and injurious suspicions? [Here Mr. HARPER produced the original letter, the handwriting and authenticity of which were recognized by several of the Senators.]

But Mr. Smith inquired anxiously about the news, in the part of the country from which Peter Taylor had come. And what more natural, what more usual, than to inquire the news, especially in a time of alarm and apprehension? The operations of Colonel Burr were the subject of general conversation, and had excited no small alarm. The plot, whatever it was, appeared to thicken about Blannerhasset’s island. Of course every one felt anxious to know what was going on at that place, and in its neighborhood. This circumstance, then, is of no moment; and the letter, the only ground of suspicion, being fully explained, every thing is explained, except the last fact stated by Taylor, on which I will now bestow some attention.

Taylor states that Mr. Smith offered him something to drink, and “charged him not to go to any tavern, lest the people should be sifting him with their questions.” Sift him about what? Did Smith then suppose that Blannerhasset’s gardener and servant was possessed of the secrets of the conspiracy, which might be sifted out of him? Is it credible that so gross and absurd an idea could be entertained by a man of his understanding? Had he used precautions to prevent Blannerhasset himself from being sifted, there would have been some sense in it: but to suppose him afraid of the gardener’s being sifted about things, which if he knew them himself he must have been satisfied that the gardener could not know, is to impute to him more folly than those who charge him with a principal participation in Colonel Burr’s designs, would be willing to admit.

Will it be said that Smith was afraid of the gardener’s being sifted about the public occurrences in the island and its neighborhood, which a person in his situation might be supposed to know? I answer, why should he be so afraid? As those circumstances were notorious, the gardener could do no harm by telling them; and they would speedily be known at Cincinnati, whether he told them or not.

It is therefore impossible to suppose that Smith’s wish to keep Peter Taylor away from the taverns, if he really had such a wish, proceeded from any fear of disclosures which Taylor might make. It is much more probable that Taylor, whose recollection we have already found to be very imperfect, or to whom these little circumstances could not then have appeared to be of any importance, has fallen into a mistake in relating them, than that John Smith did so foolish a thing. He might, indeed, caution Taylor not to go to a tavern, for fear that he should get engaged in drinking, and delay his time--a thing which he knew was very likely to happen to a man in Taylor’s situation; and it is possible, that in order to keep him away, he endeavored to alarm him about something that might happen to him at the tavern. This matter, floating confusedly in Taylor’s brain, has at last assumed the form of this story about sifting, which has found its way into his testimony, and is now adduced to fix a charge of treason on John Smith.

And it is not a little surprising, if we are implicitly to believe Peter Taylor, that Mr. Smith, after having taken so much pains to keep him away from the taverns, for fear of his being sifted, should immediately have sent him to one to get his horse fed; thus exposing him, for the value of a gallon of oats, to the very danger from which he had just appeared so anxious to guard him. “He then showed me,” says Taylor, “a tavern, and told me to go to get my horse fed by the hostler, but not to go into the house.” Does not this prove that if Smith wished to keep Taylor out of the taverns, it was to preserve him from the temptation to get drunk and lose his time, and not to keep him out of the way of questions? Had the latter been his object, would he have sent this man to a tavern at all? Would he not have had the horse fed in his own stable, or sent him to the tavern by his own servant?

I here dismiss the story of Peter Taylor, Mr. President, presuming to believe that the only fact of any moment, the letter, is satisfactorily cleared up by the letter itself and Colonel Burr’s answer; and that the other slight and trivial circumstances of suspicion are fully explained, or resolved into the confusedness and inaccuracy of Taylor’s recollection. Certainly facts so doubtful in themselves, so inconsiderable, so capable of being misunderstood by the witness, ought not to have any weight in such a case as this.

The testimony of Major John Riddle comes next to be considered; in which he states that Mr. Smith told him that he knew more of Colonel Burr’s plans than any other person in the State of Ohio, except one. Smith no doubt did, at that time, suppose that he knew a great deal about Burr’s plans, for he had then received the letter in which Burr affects to explain them. It is not therefore surprising that he should make this remark to Major Riddle; but as Major Riddle was, at the time of this communication, the commander of a body of militia, stationed on the Ohio to oppose Burr’s progress, it would have been most surprising if Smith, having a knowledge of Burr’s real plan, had selected this officer as a person to whom to boast of it. This consideration discloses the true nature of Smith’s communication to Major Riddle. He believed that he knew Burr’s plans, and that they were innocent. He therefore told Major Riddle so; but had he really known them to be criminal, this officer was one of the last persons in the world to whom he would have disclosed his knowledge. Thus this casual communication to Major Riddle, which the malicious industry of Mr. Smith’s enemies has hunted up and adduced as a proof of his guilt, appears to be a most convincing proof of his innocence.

But Mr. Smith also told Riddle “that if Burr succeeded, he would prefer living at Cincinnati, to Philadelphia or New York, on account of business.” Succeeded in what? Why in the innocent plans, which Smith had just before told Riddle that he understood better than any person in Ohio, but one. These plans, as explained by Colonel Burr to Mr. Smith, were to form a strong and numerous settlement on the Washita, and in case of a Spanish war to invade Mexico, under the authority of the Government. And Mr. Smith, without more aid from the imagination than men usually obtain in such cases, might have brought himself to believe that in case these plans should succeed, they would give rise to a vast trade between the country on the Ohio, and the new settlement or conquests; that Cincinnati would become the centre of this trade, and that he, by reason of his connections and situation, would be able to obtain a large share in it. This might have been an airy speculation, but it was certainly an innocent case; for it is manifest that the plans on the success of which it was bottomed were innocent plans. Such Smith, at that time, supposed Burr’s plans to be; or he would not have made his knowledge of them a subject of conversation with Major Riddle.

That Major Riddle himself viewed the matter in this light, is evident from his conduct. He was stationed on the river, with the command of a detachment of militia, and had orders from his superior officer, General Gano, to collect as much information as possible respecting Colonel Burr’s plans and associates, and to report this to his General. Of this we are informed by a deposition of General Gano himself; who also states that Major Riddle did report to him, but made no mention of this conversation with Mr. Smith, nor alluded to Mr. S. in any manner. This conversation, therefore, must have been on the whole of such a nature, or accompanied by such circumstances, as to make it appear perfectly innocent to Major Riddle; who, otherwise, must have communicated it as matter of suspicion at least to his commander. Had we enjoyed the opportunity of cross-examining Major Riddle, these circumstances, and the rest of the conversation, would no doubt have been recalled to his recollection, and fully explained by him. In an ex parte deposition they have been forgotten, or omitted as unimportant--an additional and very striking example of the importance of the privilege of being confronted with the witnesses against us, and of the danger of admitting any species of ex parte testimony.

I come now, Mr. President, to the testimony of Colonel James Taylor, who represents Mr. Smith as having, in a conversation with him and others at Cincinnati, expressed opinions favorable to a separation of the Union.

It is to be recollected that Dr. Sellman, the brother-in-law of Colonel Taylor, and a warm friend of the present Administration, was also present at this conversation. This clearly appears from Dr. Sellman’s deposition of February fifteenth, 1808, compared with the testimony of Colonel Taylor. Dr. Sellman has stated this conversation with great accuracy: and he represents Mr. Smith as having not even expressed an opinion, much less a wish that the Union would be dissolved, but merely as having repeated the opinions of a writer, under the signature of the Querist, who had advocated a separation. Dr. Sellman tells us that there were five or six persons present, none of whom however he names, except Mr. Smith and Colonel Taylor. Let us take his own words:

“After attending some time to the conversation, I noticed that a reference was occasionally made to a publication, or publications, 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 for both the gentlemen; but I believe it was intended for Mr. S. ‘Do you expect or apprehend an early separation of the Union?’ To which Mr. S. replied, ‘Not in my lifetime; and I hope, or pray to God, I may never live to see it, whether it takes place sooner or later.’ This declaration being perfectly satisfactory to me, I paid little or no attention to the conversation, and afterwards, I believe soon afterwards, left the place. I did not hear Mr. S., or any person present, advocate a separation of the Union; nor have I ever before or since that time, heard Mr. S. advocate a separation of the Union.”

Thus, then, we see, sir, that these two witnesses--men of equally fair and respectable character, and equal intelligence--differ entirely in their manner of understanding this conversation, in which they both took a part. Colonel Taylor understands Mr. Smith to have advocated a separation, and Dr. Sellman declares that he did not advocate it, but merely repeated the arguments of the Querist, and expressed his hope that a separation might never take place, and that, if it did, he might not live to see it. Now let me ask whether this contradiction, between two witnesses equally entitled to credit, does not leave the matter at least in doubt? Do not the scales hang in equilibrium? And in this state of doubt, can you decide in the affirmative? Does not the matter remain precisely as if there were no proof on either side; and can you decide affirmatively in the absence of proof? Is it not a fair and rational, as well as legal, presumption, that a man is innocent till his guilt appears; and can you say that Mr. Smith’s guilt appears, when the only witness against him is contradicted by a witness of equal credit?

But I go further, Mr. President. I contend that every presumption derived from the nature of the case, and the circumstances and situation of the parties, is in favor of the statement made by Dr. Sellman. In the first place, it appears that Dr. S.’s attention was particularly drawn to the subject, and that he asked a question for the express purpose of ascertaining whether those gentlemen spoke their own sentiments, or merely repeated those of the writer. It is not therefore at all probable that he would forget, or so widely mistake, a fact, to which his attention was so strongly attracted. Had Mr. Smith advocated a separation, as is now supposed by Colonel Taylor, Dr. Sellman could not possibly have been in doubt on the subject, and his question would have been useless and silly.

Secondly, we find Dr. Sellman very accurate and positive in his recollection of Mr. Smith’s answer. It is impossible to suppose him mistaken in a point which interested him so much, and must have made so strong an impression on his mind. This answer of Mr. Smith is utterly inconsistent with the statement of Colonel Taylor; for it is incredible, that after having advocated a separation to Colonel Taylor and General Findley, he should immediately, and in their presence, deprecate it to Dr. Sellman as a misfortune, which he hoped, if it must befall us, he should not live to see.

Thirdly, as Dr. Sellman was warmly opposed to a separation, it is most certain that his attention must have been very strongly arrested, and indeed his indignation excited, by such a conversation as Colonel Taylor attributes to Mr. Smith; which could not have escaped his attention, or so soon have been effaced from his memory.

It appears, in the fourth place, that there were several other persons present at this conversation. Dr. Sellman says five or six, though he does not name any of them. Colonel Taylor says that General Findley was present. Now let me ask, if such sentiments had been expressed, in such a company, by a man holding Mr. Smith’s situation in the Government, would they not have attracted great attention, and given rise to much conversation? Would not the matter, in all probability, have come to the ears of some of those persons in Cincinnati who have been so active and persevering in collecting testimony against Mr. Smith? And would not some of those who heard this conversation, beside Colonel Taylor, have been called on to testify?

Again: Why should Mr. Smith, on this occasion alone, have made himself the advocate of dismemberment? Had he been disposed to preach this doctrine, in the hope of making converts, would he have confined his exertions to this one time and place? There is no evidence, nor even accusation of his having broached the subject any where else; and if he had done so, it could hardly have escaped notice. Had he been a promoter of separation, would he have addressed himself solely to those persons whom he must have known to be most averse from it; or would he not have chosen for his hearers the weak and ignorant, who were most likely to be affected by the usual arguments in favor of such a measure?

All these difficulties are reconciled by supposing, with Dr. Sellman, that Mr. Smith merely repeated, without approbation, the opinions of the Querist; and that Colonel Taylor misunderstood him as stating his own opinions and wishes. He might even have gone further, and have expressed an opinion or apprehension of his own, that the Union would one day separate. That such a speculative opinion, or rather fear, is entertained by many among us, who most ardently deprecate the event, is notorious; and we find, from General Carberry’s testimony, that Colonel Taylor himself is of this number. He told Gen. Carberry that he thought the Union would separate in twenty years, and Gen. C. reproved him for fixing even an imaginary period to its duration. It does not follow from this that Colonel Taylor wished for a separation; and, surely, what he innocently thought and expressed, as a matter of speculative opinion, or of fear and dread, Mr. Smith may have innocently thought and expressed in the same manner. That Colonel Taylor should mistake the nature and extent of these expressions; should understand them as arguments in favor of separation, is far more probable, than that Mr. Smith should have advanced such arguments, at such a time, and in such a company. When to this strong probability we add the positive testimony of Dr. Sellman, I cannot but confidently hope that it will remove every doubt on the subject. Had Mr. Smith advocated a separation of the Union at such a time, it would no doubt have justified strong suspicions of his being connected with the plans of Colonel Burr, which probably had dismemberment, in part at least, for their object. But I humbly trust, Mr. President, that the charge, without impeaching the integrity of so respectable a witness as Colonel Taylor, has been completely disproved.

The next circumstance alleged against Mr. Smith, as evidence of a connection with Colonel Burr, is the visit which he paid to Frankfort, in Kentucky, in the autumn of 1806. This has been supposed to be a visit to Colonel Burr; but the testimony which we have adduced shows most satisfactorily, that it was a journey on public business. To this point our evidence is full and complete. Mr. Smith, then contractor for the army, was called on for very large supplies, on account of the additional force called to the Sabine. He found, on inquiry from his agents in Kentucky, whose depositions we have produced, and who are proved to be men of character, that purchases could be made there on very advantageous terms, for cash. He was not in cash, and therefore resolved to try whether he could sell or discount bills on Philadelphia. The best prospect of making this operation to advantage, and indeed the only prospect of making it at all, was with the Insurance Company at Lexington, which acts as a bank and exchange office. He accordingly went to Lexington for that purpose. On his arrival there, he heard, for the first time, as is fully proved, that Colonel Burr was on his trial at Frankfort, where most of the directors of this Insurance Company were attending the trial. He then resolved to go to Frankfort, for the purpose of sounding them on the subject. He arrived there in the evening, and stopped at a tavern, where he soon learned that Colonel Burr also lodged. In the course of the evening, he paid a short complimentary visit to Colonel Burr, saw some of the directors, learned from them that his object of selling or discounting bills could not be accomplished, and early next morning set out on his return home. All these facts are satisfactorily proved. I will not recapitulate the testimony, which is fresh in the recollection of the honorable members. But, I ask, what is there criminal or suspicious in this transaction? Surely, it would be a waste of time to employ it in the refutation of such a charge.

The next point to which I am to call the attention of this honorable House, is the bill drawn by Colonel Burr on Mr. Smith, in favor of Lieutenant Jackson. The drawing of this bill is adduced as a proof of connection between Colonel Burr and Mr. Smith. It admits of most satisfactory explanation in two different ways.

In the first place, it is notorious that Colonel Burr, in order to increase the number and the confidence of his partisans, was in the habit of representing himself as being connected with, and supported by, many persons, whose names he supposed would add some credit and weight to his enterprise; and who are known to have opposed his schemes, instead of being engaged in them. Of this, the case of Commodore Truxton is a striking instance. In this case, we find that Colonel Burr was very desirous of engaging Mr. Jackson in his enterprise. Jackson was reluctant and doubtful. Mr. Smith was a man of note and consequence, whose name might well be supposed to have much influence on the mind of a youth like Jackson; and to draw a bill on him, for an object connected with the enterprise, was an indirect, but very significant mode of telling Jackson that he was engaged. To artifices of this kind, we know that this unhappy man had constant recourse. He, no doubt, sometimes deceived himself; but he very often attempted to deceive others, in hopes of drawing them into those schemes which have plunged him into irretrievable ruin.

Secondly, we know that Colonel Burr, when he set out from Cincinnati on his journey down the river, left a sum of money in the hands of Mr. Smith. This is proved to be usual with persons travelling in that country, and may have been done by Col. Burr, from motives of convenience, or with a view of giving himself the appearance of a connection with Mr. Smith, by drawing on him. But it was done. The money was in Mr. Smith’s hands. Colonel Burr had drawn for it, in favor of Belknap, and he could not have known that Belknap’s bill had been accepted, or would be so, before Jackson’s should be presented. He had drawn in favor of Belknap, for his own use. He might, therefore, well have supposed that the money was still in Mr. Smith’s hands, and that he had a right to draw for it.

But, in whatever way we account for his drawing this bill, it was his own act; an act which he had no right to do, beyond the money left by him in Mr. Smith’s hands. To bring this act home to Mr. Smith, and make it evidence against him, it must be shown that he had given Colonel Burr authority to draw. In other words, had agreed to supply him with funds. Drawing the bill is nothing more than a declaration by Colonel Burr; and this declaration cannot affect Mr. Smith, unless he authorized it previously, or confirmed it afterwards by paying the bill. Colonel Burr drew a bill on me for $1,500, which I had not authorized, and declined to accept. Because Colonel Burr thought fit to take this step, am I, therefore, to be considered as engaged in his schemes? Surely, his mere declaration cannot be allowed to criminate Mr. Smith. If it could, how extensively would the principle operate! How many of the best men in the country would be implicated!

There is another circumstance which strongly confirms the view which we give of this subject. When Colonel Burr directed Jackson to call on Smith with the bill, he does not tell him to apply to Smith for any information concerning his plans. On this subject, he referred him solely to General Tupper. So says Jackson, expressly. But why to Tupper, rather than Smith? Smith was a much more important man than Tupper; and if engaged in the scheme, was quite as capable of giving him information. He would have given it much sooner, too, for Tupper lived at Marietta, and Smith at Cincinnati; where Jackson, in his journey up the river, would first arrive. Why, then, I say, direct the application to Tupper, rather than to Smith? Sir, the reason is obvious. Colonel Burr, though he might have been willing to insinuate, by drawing the bill, that Mr. Smith was engaged, knew very well that he was not; and that, if he should direct Jackson to call on him for information, it would lead to detection. This fact alone proves, more strongly than a thousand witnesses, the innocence of Mr. Smith. Witnesses may misunderstand, forget, or prevaricate; but facts like this lay open the hearts of men, let us into their inmost thoughts, and speak a language which we can neither misunderstand nor disbelieve.

As to the bill drawn by Colonel Burr on Mr. Smith, in favor of Belknap, which Mr. Smith paid, and which forms the next head of accusation, I beg leave to read to the Senate the testimony of General Carberry. He states that, some time before the date of this bill, Mr. Smith informed him that Colonel Burr, finding it inconvenient to carry his money with him, when he went down the Ohio, left it at Cincinnati in the care of Mr. Smith; a circumstance which the same witness proves to be usual with persons travelling in that country, and on which it is impossible to lay any stress: for every body must admit that had the money been left for any improper purpose, Mr. Smith would have kept the knowledge of it to himself, instead of communicating it as he did to General Carberry. The bill drawn in favor of Belknap, and paid, might of itself, standing alone, furnish some ground of suspicion against Mr. Smith, as tending to show that he was in the habit of supplying Colonel Burr with funds; but when it comes to be connected with the deposit of money, which is proved by General Carberry, it is completely explained. For nothing was more natural than that Colonel Burr, having left his money with Mr. Smith, should direct it to be paid to a person to whom he owed it, or who was to employ it for his benefit.

I come now, Mr. President, to the seeming contradiction between the statement of Mr. Smith, and the testimony taken at Richmond on the trial of Colonel Burr, upon which I understand that some stress is laid. I say the “seeming contradiction,” because I feel confident of being able to show clearly that no real contradiction exists.

Mr. Smith, in his deposition before Matthew Nimmo, states that Colonel Burr, early in September, 1806, spoke of the settlement of his Washita lands. By the testimony given at Richmond in the trial of Colonel Burr, by Lynch, from whom those lands were purchased, it appears that the contract was not made with Colonel Burr till after the time when Mr. Smith states this conversation to have taken place. Hence it is inferred that Colonel Burr could not have spoken to Mr. Smith of his Washita lands.

But is it forgotten that Colonel Burr was in the habit of speaking of these lands as his, and of his intention of settling them, long before the period assigned by Mr. Smith for this conversation? This appears from the testimony of Commodore Truxton, delivered at Richmond on the same trial. He states, that in the summer of 1806, before Colonel Burr set out for the Western country, he spoke of his Washita lands, and of his plan of settlement. This he did either because he had then made an informal contract for those lands, and therefore considered them as his, though the formal contract of sale was not then made; or because he had then contrived this disguise for his projects, and merely made use of it to cover his real design, from Smith and others with whom he thus conversed. In either case he would speak of the land as belonging to him. Indeed, this whole argument against Mr. Smith rests on the idea that Colonel Burr cannot be supposed to have said any thing that was not true. Mr. Smith states that Colonel Burr spoke of his Washita lands, at a time when those lands in fact were not his. Therefore Mr. Smith must have stated an untruth. I believe that gentlemen will not, on reflection, find this argument very solid.

One more point, Mr. President, and I shall conclude an argument, by which I fear this honorable body has been, as I certainly have, very much fatigued.

It is said that there exists a strong similarity between the deposition of Elias Glover, and the statement made by Mr. Smith himself, on oath; whence it is inferred that the deposition must be true. I must confess that I have not been able to discover this similarity; but if it really exist, it may be easily accounted for. Mr. Smith’s statement was sworn before Nimmo, on the sixth of January, 1807. Nimmo, it appears, kept a copy, for on the next day he certifies a paper as being a true copy of the deposition sworn to before him by Mr. Smith. This he could not have done, unless he had kept a copy, with which to compare this paper. On the second of February following, Glover made this deposition, before the same Matthew Nimmo. Now we know that Nimmo was the confidential friend and adviser of Glover; and we may very easily conceive that, before Glover prepared his deposition, he had been indulged by his friend with a perusal of the copy of Mr. Smith’s, and that to give the greater air of truth to this tale, he imitated the language as much as he could, and followed the statement of facts, as far as would suit his purpose.

Again: It is very probable that Nimmo wrote the deposition of Glover; and that, having Smith’s deposition on the same subject fresh in his recollection, he fell insensibly into the use of the phrases. This is known frequently to happen. Or the resemblance may be merely accidental. And surely a resemblance between some phrases of these two depositions, which may have proceeded from accident, or from design in Nimmo or Glover, is very weak ground for inferring the truth of facts so utterly improbable as those stated by Glover, and so strongly contradicted by the great mass of testimony which we have produced; among which are the declarations of Glover himself, and the oath of his friend and confederate McFarland.

Having now, Mr. President, reviewed all the grounds on which the charge against Mr. Smith is rested; having, as I presume to hope, satisfactorily explained all the objections which have been urged against him; and presented all the facts fairly, and as clearly as was in my power, to the view of this honorable House; I am far from intending to trouble it with any arguments of mine on the subject. The enlightened individuals who compose it are much more capable than me of drawing the proper inferences from the testimony which has been laid before them, and on which they have bestowed a most patient and laborious attention: and to their judgment I cheerfully, and I may be permitted to say confidently, submit the cause of my client. They will doubtless bear in mind, that in this cause is involved his honor, dearer to him than property or even life; and that in pronouncing their decision they ought to be guided by testimony, and not by conjecture; by the light of truth, and not by the dark and deceptive glimmerings of suspicion.

When Mr. HARPER had concluded, the consideration of the subject was further postponed.

FRIDAY, April 8.

Case of John Smith.

The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr.

A short conversation arose on the course of proceeding, some diversity of opinion existing as to the propriety of deciding on the report generally, or on the resolution of expulsion with which it concludes. When on motion of Mr. FRANKLIN, it was agreed, without a division, to proceed to the consideration of the resolution, as follows:

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. ADAMS then rose and addressed the Senate, and after replying to the legal views presented by the defence, went on to say--

I have now finished my remarks upon that part of Mr. Smith’s defence, which rests upon the supposed irregularity of the proceedings which have hitherto been sanctioned by the Senate, on this investigation, and upon objections against the principles maintained in the report of the committee. The question on the facts remains still to be discussed.

What, then, is the evidence of Mr. Smith’s participation in the conspiracy of Aaron Burr?

Since the resolution now under consideration was first offered to the Senate, the state of the evidence has very considerably changed; in some respects favorably to Mr. Smith’s defence; in others, to my mind, more inauspiciously. The testimony of Elias Glover, I consider as totally discredited; but since the deposition produced by Mr. Smith to the committee, with his answers to their queries, I gave very little credit to that witness, even before the accumulation of evidence against him, which Mr. Smith has since obtained, and recently exhibited to the Senate. Even then I thought the testimony of Glover could be of very little weight, otherwise than as it was confirmed by that of others. With the same exception, I now give it no credit at all. Stripped of the confirmation which it may receive, from admitted circumstances, from other testimony, and from Mr. Smith’s own acknowledgments, I consider the case as if no affidavit of Glover belonged to it.

But if the credit of Elias Glover has been annihilated, that of Peter Taylor has been beyond all controversy confirmed. In his answers to the committee, Mr. Smith denied almost all the material facts, (and material in the highest degree they are,) attested by Peter Taylor, respecting him, on the trials at Richmond, and he declared his belief that he could prove, by witnesses of the first respectability, his want of character as a man of truth and veracity. Since then, Mr. Smith has had the fullest opportunity to cross-examine the man himself, and to take testimony to his general character. And what is the result? The general character of Peter Taylor has risen purified from the furnace. In every witness of whom the question was asked, he had found a panegyrist. One or two mistakes of circumstances perfectly immaterial to Mr. Smith, or to any other person implicated, have been discovered in a lynx-eyed scrutiny of his testimony at Richmond; and the candor with which he instantly acknowledged them, and the firmness with which on Mr. Smith’s inquiries, he persevered in asserting all the important facts of his narrative, have given to his evidence a much greater weight than it could claim before. So decisive indeed is it, that Mr. Smith’s counsel now solemnly admits those facts which Mr. Smith had as solemnly denied in his answer; and argues with his usual ingenuity to dispel their effect.

Of Colonel James Taylor, the testimony has been in one respect counteracted, and in another much strengthened. His character was so well known, and so universally respected, that no attempt could be made to assail it, other than on the basis of a supposed mistake. This mistake, Mr. Smith, in his affidavit, made before he left this place, asserted that he expected to prove by General Findley; the only third person in hearing, according to Colonel Taylor’s statement, when the conversation, occasioned by the Querist occurred. Mr. Smith returns without the deposition of General Findley; but in its stead he brings a deposition of his friend Dr. Sellman, and also a private letter to him from the same Dr. Sellman, intimating that General Findley could not confirm Colonel Taylor’s testimony; but with a broad insinuation that General Findley would not give that deposition in favor of Mr. Smith, which he ought, for fear of losing his office. On the fact of this particular conversation, then, we must balance the weight of testimony apparently contradictory. It is barely possible that the conversations mentioned by the two witnesses, were not the same, but held at different times; and as evidence seemingly variant between two persons of character, ought always, if possible, to be reconciled, perhaps the fair and candid construction would be that. If, however, it was the same conversation, we must be reduced to the necessity of choosing which of the two witnesses has been most correct in his recollection. I cannot but consider the express testimony of Colonel Taylor, confirmed by the silence of General Findley, as that which is best entitled to our belief. Colonel Taylor, we know, was on this occasion a most reluctant witness; he had been the friend and intimate acquaintance of Mr. Smith; his principle obviously was to say as little as possible, consistent with his obligations to speak the truth. The impressions on his mind did not stand singly upon his judgment; he had compared them with those of General Findley, and by that comparison had found them confirmed. They had not slumbered upon his memory for a length of time, so as to lose their distinctness. He had communicated them to the Secretary of State in his letter of the 13th of October, 1806, written a very few days after the conversation was held. An extract of this letter is in evidence before us, and it tallies exactly with Colonel Taylor’s testimony given to the committee and before the Senate. The impartiality of Colonel Taylor, his candor, his tenderness for Mr. Smith, the excellency of his general character, and his appeal to the recollection of another respectable witness in confirmation of his own, all combine to give his testimony the highest claim to our belief. With Dr. Sellman I have no personal acquaintance, and can, therefore, speak of him only upon the evidence exhibited here on this occasion. He appears at least, in the character of a very ardent partisan of Mr. Smith. In the newspapers transmitted to us, I see his name at the foot of several very violent publications, which have not been read, but which show that fifteen months ago he had in some sort staked his own character upon the reputation of Mr. Smith. A number of depositions concur to prove that he, in company with a man who has since been convicted of an atrocious robbery, was at the head of a party who burst open the doors, and broke in upon a meeting of private citizens assembled to pass certain resolutions unfavorable to Mr. Smith, and threatened them with a coat of tar and feathers. The insinuation in his private letter to Mr. Smith, against the fair fame of General Findley, bears no distinguishing features of an ingenuous mind. I cannot believe that General Findley, a man of honorable consideration in society, holding an important public trust, could have been actuated by such unworthy motives in declining to contradict Colonel Taylor’s deposition. Could he have done it consistently with truth, he had every inducement that could operate upon generous feelings to do it. His contradiction would not have impaired the reputation of Colonel Taylor. It would not have induced a probability that he was mistaken. But to Mr. Smith it was of the first importance--his reputation in the world, his seat in the councils of the nation, the comfort of his life, the peace and happiness of his family, were all at stake, and called in the most imperious manner for the testimony of a man, who, by merely declaring that he had understood his meaning differently from the witness appealing to him, might have removed from him the burden of this imputation. It is impossible to believe that he was deterred from such an act of signal justice, by the base and contemptible fear of losing his office.

But, in addition to the evidence exhibited before the departure of Mr. Smith from this place, a multitude of new depositions are now produced; most of them obtained by himself, for the purpose of his own exculpation, and two or three furnishing strong additional circumstances against him; even those which he brings for his own discharge, have disclosed a fact of the highest import, in my estimation, very unfriendly to his defence. I mean his studious avoidance of appearing before the grand jury at Frankfort, in Kentucky, on the second complaint against Burr, in December, 1806. From the fullest consideration which I have been able to bestow upon the whole mass of this additional testimony, I have not discovered in it any ground sufficient for the rejection of this resolution. I still am convinced that it ought to pass. The most material of all the witnesses, to demonstrate that conduct of Mr. Smith, which, in my mind, imposes upon the Senate the necessity of coming to this decision, is himself. It is the coincidence between his course of conduct and that of Mr. Burr; his own tardy acknowledgments; his own alternate denials and admissions; his own consciousness of participation in unlawful proceedings, and the testimony of his own witnesses, which constitute the most irresistible evidence against him. The other witnesses and the circumstances of the times, chiefly serve to corroborate and elucidate, what he and his witnesses show, in feeble characters, and indistinct obscurity.

To exhibit this coincidence of conduct between Mr. Smith and Mr. Burr, in that light of which it is susceptible, it may be necessary, Mr. President, to review the transactions of Col. Burr, in relation to these projects, from the time when he descended from that chair, in which you now sit, until the arrival of the President’s Proclamation at Cincinnati, on the 13th of December, 1806; and to compare the conduct of Mr. Smith, contemporaneous with the several events of public notoriety, and with the facts testified by the witnesses, in the volume of evidence taken at Richmond, and transmitted to Congress by the President of the United States, with the purposes and views of Mr. Burr, at the several stages in the progress of this conspiracy.

On the 3d day of March, 1805, the term of Mr. Burr’s career as Vice President of the United States expired. How long, before that time, he had been revolving in mind his designs upon the western division of the Union, we need not inquire; but that they were then entirely new, there is every reason to believe. It is known to many, perhaps to all the members of this body, who were in the Senate at the time, that Mr. Burr, during that period, paid a very studied attention, and professed a peculiar respect to Mr. Smith. Very soon after this, in the spring, summer, and autumn of 1805, Mr. Burr was traversing the Western States and Territories, down to New Orleans, busily engaged in making every preparation possible, at that time, for the campaign of the ensuing year; even then we find, from a great variety of testimony, that Cincinnati, Mr. Smith’s place of residence, was a spot where a great portion of Mr. Burr’s exertions had been made; even then, from the depositions produced by Mr. Smith, it appears that a Western empire, with Cincinnati for its capital, had been fully disclosed to William McFarland. This importance of Cincinnati may serve to explain Mr. Smith’s observation to Major Riddle, that, if Burr succeeded, he would prefer living at Cincinnati, rather than at Baltimore or Philadelphia.

In the winter of 1805, Mr. Burr returns, to spend his time at this place, and at Philadelphia. Here it was that he made his overtures to Mr. Eaton, from whose testimony I must ask your permission, sir, to read two or three extracts, showing how far his projects were then matured:

“Col. Burr now laid open his project of revolutionizing the territory west of the Alleghany; establishing an independent empire there--New Orleans to be the capital, and he himself to be the chief; organizing a military force on the waters of the Mississippi, and carrying conquest to Mexico.”

“He stated to me that he had in person (I think the preceding season) made a tour through that country; that he had secured to his interests, and attached to his person, the most distinguished citizens of Tennessee, Kentucky, and Territory of Orleans; that he had inexhaustible resources and funds; that the army of the United States would act with him; that it would be reinforced by ten or twelve thousand men from the above-mentioned States and Territory.”

“He mentioned to me none, as principally and decidedly engaged with him, but General Wilkinson, a Mr. Alston, who, I afterwards learned, was his son-in-law, and a Mr. Ephraim Kibby, who, I learned, was late a captain of rangers in Wayne’s army.” “Of Kibby, he said, that he was brigade major in the vicinity of Cincinnati, (whether in Ohio or in Kentucky, I know not,) who had much influence with the militia, and had already engaged a majority of the brigade to which he belonged, who were ready to march at Mr. Burr’s signal. Mr. Burr talked of this revolution as a matter of right inherent in the people, and constitutional; a revolution which would rather be advantageous than detrimental to the Atlantic States; a revolution which must eventually take place; and for the operation of which the present crisis was peculiarly favorable; that there was no energy, to be dreaded, in the General Government, and his conversations denoted a confidence that his arrangements were so well made that he should meet with no opposition at New Orleans, for the army and the chief citizens of that place were ready to receive him.”

Such, then, was the plan of Mr. Burr, and such, by his declarations, the state of his preparatory measures in the winter of 1805-’6; and I have read the part of his statement relative to Major Kibby, (and I mention it now, lest I might hereafter forget it,) because it may serve to explain what Mr. Smith said to Major Riddle just after the arrival of the President’s Proclamation at Cincinnati; that he (Smith) knew more of Burr’s plans than any man in the State of Ohio, except one. Here, it seems, there was one man, who knew them very sufficiently; and it appears, by the depositions produced by Mr. Smith, that William McFarland also knew a great deal of them.

Let us follow Mr. Burr to Philadelphia, and notice some particulars of his conversation there with Commodore Truxton, in July, 1806. I shall read from the Commodore’s testimony only those parts which may serve best to connect the chain of events, and to show the consistency of Burr’s purposes. He had previously, in the winter, talked with that gentleman about land speculations, but in July, 1806, “he observed, (says the Commodore,) 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. Mr. B. 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 told Mr. Burr that I would have nothing to do with it.” “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.”

“Mr. Burr asked me if I would not write to General Wilkinson, as he was about to despatch two couriers to him. I told him that I had no subject to write on, and declined writing.”

This conversation was about the last of July; and I must now recur to one or two passages in the famous ciphered letter of Gen. Wilkinson. In the copy I have before me, it has no date,[51] but the formal letter of introduction, which Mr. Swartwout carried with it, is dated 25th July, 1806. It was, then, written on or near the same day when Mr. Burr had his last conversation with Commodore Truxton.

This letter indicates that Mr. Burr was on the point of departure for the execution of the enterprise, which it declares he had actually commenced; that detachments were to rendezvous on the Ohio, 1st November, and to move down rapidly from the falls on the 15th of November, with the first five hundred or one thousand men, in light boats, constructing for that purpose.

It adds: “Burr will proceed westward, first August, never to return; with him goes his daughter; the husband will follow in October, with a corps of worthies.”

Finally, the letter contains also this passage: “Already are orders to the contractor given to forward six months’ provisions to points Wilkinson may name; this shall not be used until the last moment, and then under proper injunctions.”

Whether Mr. Burr did actually leave Philadelphia on the 1st of August, as his letter announces, I am unable to collect from any of the testimony that has fallen under my observation; but on the 21st of August he had reached Pittsburg; and there he invited himself to dinner the next day with Col. Morgan, in a manner precisely similar to that in which he so shortly afterward invited himself to pass five or six days at the house of Mr. Smith. At Colonel Morgan’s, he dined and lodged one night. I shall not recur specially to the remarkable testimony of Colonel Morgan and his son, for it must be fresh in the recollection of every one who hears me. I shall barely notice that, during his short visit here, he broached all his doctrines respecting the imbecility of the present Administration, and the right, the interest, and the provocations which the Western people had to separate them from the Atlantic States. He was here commencing that mode of operation for effecting the dismemberment of the Union, which, in his subsequent letter of the 26th October to Mr. Smith, he states to be the only mode in which that object could be accomplished. His experiment did not commence in the right place. His attempt to tamper with men of honor and sentiment, met the reception it deserved. He left the house before breakfast the next morning.

On the 1st of September he had descended the river and was upon Blannerhasset’s island; and, on the 4th of the same month, appeared in the newspaper, at Marietta, the first number of the Querist, which was followed by two or three more. I have been unable to obtain a copy of these papers, but the substance of their contents is well known. Their object was to prepare the minds of the people, in that part of the country, for a separation from the Atlantic States; they dilated upon all the topics so familiar in the mouth of Mr. Burr; and so much were they identified with his doctrines, that Dr. Wallace, one of the witnesses at Richmond, with whom Burr had conversed on these subjects in the summer of 1805, declares that, on his first perusal of these papers, he drew from their internal evidence the conclusion that the ideas were Burr’s, and the language Blannerhasset’s. Blannerhasset was, indeed, the writer, and precisely at the same time and immediately after, was ranging the country with the activity and spirit of a recruiting officer--promising the plunder of banks at New Orleans and of Mexican mines--settling the hereditary succession of the fancied Crown; and teeming with embassies and empires.

On the very same day that the first number of the “Querist” appeared at Marietta, the 4th of September, Mr. Burr, by the pencilled note, invites himself to the house of Mr. Smith, in Cincinnati, where he is hospitably received and entertained five or six days. During this time, he spends an evening at William McFarland’s, where he holds exactly the same kind of conversation about the impotence of the Government, the rights and wrongs of the Western country, and their inducements to separate from the rest of the Union. About the 10th of September he leaves Mr. Smith’s; proceeds to Lexington, in Kentucky, where he arrives and concludes his contract for the Washita lands, before the close of that month.

Mr. Smith, in his answers to the queries of the committee, (an answer which he offered to make upon oath,) says that, on this visit, Colonel Burr tarried with him five or six days, and then progressed on his journey: for what he next adds, I must refer to his own words:

“But he did not disclose to me ANY object he had in view. Meanwhile the voice of suspicion and jealousy was raised against him, and although I knew as little of his objects in visiting the Western States as either of you, still, as I had entertained him in conformity to the customs in which I was reared, and according to my own sense of propriety, I felt uneasiness and jealousy in consequence of these reports.”

The character of Colonel Burr is now generally well understood; and, when combined with the circumstances I have just mentioned, and with others which I am about to mention, it is difficult to conceive that his visit to Mr. Smith at this time should have been made without design. For the projects he contemplated, and which he was then attempting to carry into execution, Mr. Smith was a man of the very first importance. As a Senator of the United States, it is obvious how useful his services might become, in his attendance here, during the session of Congress. As a contractor for building gunboats, and for supplying the army with provisions, he could, without exciting suspicion, and without danger of detection, be of the greatest use in performing the same services, and furnishing for Mr. Burr the same kind of supplies. As a man of influence and consideration in the State to which he belonged, his aid in propagating the doctrines of disunion, and in contributing to the accomplishment of that end, were not less desirable. The motives of profit and of distinction which might be held up to his expectations, were of a nature as persuasive upon a mind, which could be as susceptible of receiving them, as those of making Truxton an Admiral, or Eaton a General. Is it, then, credible that, while Burr was proceeding upon his business, with all the activity and energy of his character; while his boats were building and his provisions collecting; while he was obtruding almost upon every stranger and transient acquaintance, that he found in his way, the opinions which were suitable to his purpose--while Blannerhasset was filling the newspapers with rebellion, and engaging men for war, under his standard--is it credible, I say, that Burr should have solicited entertainment under the roof of Mr. Smith, and obtained it, for five or six days, without so much as intimating to him any one of his purposes? Is it credible that, in the course of that visit and in the intimacy between the parties, which the whole transaction so strongly implies, amidst the violent suspicions with which Mr. Burr, even then, was notoriously surrounded, there should never have occurred to the friendly solicitude of Mr. Smith a single inquiry which would have led to a disclosure, real or pretended, of the object of Mr. Burr’s visit, and of his progress through the Western States? Should this be deemed, under all these circumstances, a credible thing, I then ask, how Mr. Smith’s asseveration that Burr did not then disclose to him ANY object he had in view, is to be reconciled with Mr. Smith’s affidavit of 6th January, 1807, in which he says, “Burr did then speak to him about his project of settling a large tract of his Washita lands.”

It is one of the peculiarities attending Burr’s conduct, through the whole of his conspiracy, that he had always an ostensible object, to serve as a mask to the real design. One of the difficulties and inconveniences of this method of transacting business is, that in exhibiting the purpose, which is meant only for show, it is apt to be materially variant from itself at different times. It is often variant, not upon trivial incidents, with which the best human memory cannot be accountable for perfect accuracy, but upon the most essential part of the story. It is inconceivable to me, that, at that precise period of Mr. Burr’s experiment upon the Western States, he should thus have been, at his own desire, the guest of Mr. Smith, five or six days, without making to him any communication of his real views, while he was so liberally disseminating them to others far less intimate to his acquaintance, and far less important to his purposes--and when we find Mr. Smith’s own narrative, upon this very point, so variant from itself at different times, how can we suppress the belief that the real story was not that which could safely be told?

The conversation to which Colonel James Taylor attests, occurs within a very few days after the departure of Mr. Burr from Mr. Smith’s house, at this period. The subject of that conversation was the separation of the States. Mr. Smith takes pains to circulate that Querist, which was to scatter the seeds of disunion throughout the Western country. Mr. Smith adopts its arguments as his own; and adds others of the same tendency to assist its effects. Mr. Smith contends that these doctrines, however obnoxious then, in less than two years would become ORTHODOX. Is there no knowledge and participation in Burr’s projects on the face of these expressions? We are told they were speculative opinions; and we hear complaints that a man should be held accountable for his political speculations. But when speculative opinions are associated with military preparations, and a formidable enterprise in the very process of execution, then, sir, they assume a very different complexion from that of free and legitimate discussion. Speculative opinions, at all times, have such an influence upon practice, that I hold it not very justifiable in a man vested with public trust, to speak in terms of approbation, of a dismemberment of this Union, upon any contingency, or at any distance of time. We ought to deprecate this greatest of all possible calamities, for our posterity as well as for ourselves. Yet, I acknowledge, that even these dangerous opinions, when merely speculative, may be expressed without evil intentions, and ought not to draw the weight of public censure upon the person using them, in the form of a decision of this body. It is the time, the occasion, the circumstance, upon which this speculative opinion was divulged, which display it as evidence of Mr. Smith’s participation in Burr’s conspiracy against the Union.

We have followed the course of events until the close of September, about which time Blannerhasset follows Mr. Burr into Kentucky. In the course of that and the following month, the preparations and conversations of both these personages, the numbers of the Querist, and certain publications of an opposite character, which appeared in another newspaper, called the Western World, had roused the suspicions, the anxieties, the resentments of the people in that part of the Union, to the highest degree. About the 20th of October, Mrs. Blannerhasset found it necessary to despatch Peter Taylor from the island, into Kentucky, for the purpose of warning Burr that he could not, with personal safety to himself, return to the island. Taylor was to go first to Chilicothe, then to Smith’s, at Cincinnati; and there he was to be told where Burr and Blannerhasset were to be found. At this time it was no longer safe to inculcate the disunion of the States. The people there, I thank God, were not to be deluded by Mr. Burr’s mode or by any other mode of effecting a dismemberment. They were true to themselves and to their country. The public odium had arrived at such a pitch, that it might not be advisable for Mr. Smith to appear so intimate with Burr, as to know where he was to be found, and it might also be necessary for him to have the ostensible object of Mr. Burr’s purposes ascertained. For, although he says that, when Burr was with him in September, he had talked about the settlement of the Washita lands, yet, at that time, the purchase was not made.

This view of the state of things at that time will explain the particulars of Peter Taylor’s testimony. When he arrives at Mr. Smith’s, and inquires for Burr and Blannerhasset, Mr. Smith answers, that he knows nothing of either of them. That Taylor must be mistaken; that was not the place; but finding Taylor to be Blannerhasset’s servant, he tells him, “he expected they were at Lexington, at the house of a Mr. Jourdan.” Now, sir, what does this denial, in the first instance, that he knew any thing of them, and this pointing so precisely afterwards to the very house where they were to be found, indicate? The counsel for Mr. Smith says, that Taylor was sent there for Mr. Burr’s greatcoat; nothing of that appears in the evidence. But, from Taylor’s declaration, it appears that he was sent there to ascertain where Burr and Blannerhasset were to be found; that Mr. Smith, at first, denied knowing where they were, and afterwards told him the very house in Lexington where he was to go for them. As the sole object of Taylor’s going to Mr. Smith, was to inquire where Burr and Blannerhasset were, and as, before he left the house, Mr. Smith gave him a letter for Burr, under cover, to Blannerhasset, it is impossible to doubt the correctness of Taylor’s testimony in that respect; that Mr. Smith told him where to go. The inference is irresistible. This accurate knowledge where they were, and this express denial of that knowledge to a man whom he supposed a stranger, is a proof that, even then, Mr. Smith knew much more than he was willing to avow.

The remainder of Peter Taylor’s story, so far as it respects Mr. Smith, all concurs to establish the same fact. Mr. Smith’s anxious inquiries for the news; for what was passing; for what was said, about General Wilkinson; the charge to Peter Taylor not to go to a tavern, lest he should be sifted with questions; and, finally, the letter, professedly to Blannerhasset, but enclosing one to Mr. Burr, all combine to exhibit a state of mind agitated and alarmed, studious of concealment, and fearful of detection.

Above all, consider the inquiry, what was said about General Wilkinson. What could have associated, in a mind utterly ignorant of all Burr’s projects, inquiries about Wilkinson with the then situation of Burr and Blannerhasset? Recollect the passage of the ciphered letter: “Already has the contractor orders to furnish six months’ provisions at the points Wilkinson shall name; this shall be used only at the last moment, and then under proper injunctions.”

Mr. Smith has, at one time, denied all the material facts attested by Peter Taylor; and he attempted to disgrace his character; so little has he been borne out by his own evidence, now produced, that he formally admits the very facts he had denied. The same course has been pursued with regard to Colonel James Taylor’s testimony. Sir, this treatment of the witnesses is not calculated to inspire confidence in the solidity of Mr. Smith’s defence. Unfounded attacks upon the character of a respectable witness, not only confirm, but aggravate the weight of his testimony.

If, however, the testimony of Peter Taylor needed confirmation, it would be found in the substance of the letter itself, of which he was the bearer, and of the answer to that letter. To these two documents I now ask the particular attention of the Senate. The letter is dated 23d October, 1806, and says: “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.”

Now, what is the solicitude manifested in this letter? It is not so much that Mr. Burr’s object should be declared, not to be the dismemberment of the Union. It asks for something which may be told, to prevent the tranquillity of the country from being interrupted. And it very explicitly intimates what must be denied.

It is an answer of a very peculiar kind which appears to be wanted; an answer contained in the letter itself. A voucher is wanted to deny the project for dismembering the Union; and to speak with certainty of the ostensible object. This was the settlement of the Washita lands. Mr. Smith, in one of his narratives, says that Burr had talked with him on this subject in September before; but the purchase of the lands was not then concluded. It was uncertain whether that could now be spoken of as the professed purpose, and Mr. Smith’s letter was well adapted to obtain that certainty.

Mr. Burr’s answer appears perfectly to have understood the object of these inquiries. Much has been said by Mr. Smith about the apparent frankness and candor of this letter, and on this document he relies, with great emphasis, as a complete justification of all his subsequent confidence in Mr. Burr. To me, sir, it bears a very different aspect. Considering it in the light of an answer to the solicitude of a man altogether unconscious of Mr. Burr’s real designs, and aware of the extremely suspicious appearances in which the conduct of Mr. Burr was involved, this answer appears to me calculated for any thing rather than to restore confidence. To manifest its real character, let us attend to some of its most remarkable passages. Mr. Burr says:

“If there exists any design to separate the Western from the Eastern States, I am totally ignorant of it. I never harbored or expressed any such intention to any one, nor did any person ever intimate such design to me. Indeed, I have no conception of any mode in which such a measure could be promoted, except by operating on the minds of the people, and demonstrating it to be their interest. I have never written or published a line on this subject, nor ever expressed any other sentiments than those which you have heard from me in public companies, at Washington and elsewhere, and in which I think you concurred.”

At this passage there are the following notes by Mr. Smith:

“J. Smith has heard Colonel Burr and others say, that in fifty or a hundred years, the Territory of the United States would compose two distinct Governments.”

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.

I am, dear sir, your most obedient servant,

JOHN SMITH.

Colonel BURR.

I differ more from my honorable friend from Massachusetts, upon the interpretation of this part of the evidence than upon any other, and think his inference more unreasonable and improbable. He seems to admit that the letter itself contains nothing criminal, but infers a criminal intent in writing it. He supposes it to have been the effect of an arrangement previously concerted with Burr to divert and deceive the public attention, and seems to consider it a masterpiece of diplomatic skill; and thus he ascribes to Mr. Smith the character of consummate duplicity. I think the character of this transaction is just the reverse. I think it the letter of a plain, unsuspicious, deluded man. It should be observed, that it is scarcely possible that such an arrangement should have been made between Burr and Mr. Smith as is presumed; because, at the time Burr left Mr. Smith’s house, neither of them could have been apprised of Peter Taylor’s mission. He was sent by Mrs. Blannerhasset, without the knowledge of either of them, in consequence of circumstances which had taken place after Burr had left the island, as well as Mr. Smith’s house; circumstances which Mr. Burr could not have wished or expected, and, therefore, could not be presumed to have taken precautions against them; nor can it be presumed that Mr. Smith could have availed himself of an opportunity of which he was not apprised, in a moment, without a minute for deliberation, to contrive and execute such a plan; nor could Burr have been furnished with any clue to his object, if he had. It would, indeed, have been a chef d’œuvre in the diplomatic art; it would have been beyond the skill of the Prince of Benevento himself; nor, could Mr. Smith have been made competent to it by his most diligent attention as the Prince’s pupil for three months, being about the time, in the course of Mr. Smith’s whole lifetime, in which he is presumed to be completely converted from a plain-dealing, honest man, into the prince of intriguers and negotiators. Human nature is not capable of such a conversion, if it wished it; Mr. Smith could not, if he would, have thus metamorphosed his own character. The inferences of the gentleman, therefore, are strained, unnatural, and scarcely possible. If we give the letter its common and natural import, it is perfectly innocent, if not laudable. Mr. Smith, doubtless, felt some uneasiness at the general resentment displayed against Burr, and might apprehend it would be applied to him in consequence of having hospitably entertained Burr at his house; and, believing Burr to entertain no dishonorable views, he very naturally and properly wrote to him to disclose his objects, that he might tranquillize the public mind respecting them. But inferences are made from Burr’s letters, in reply, unfavorable to Mr. Smith. I differ entirely with the gentleman from Massachusetts, in the interpretation of the contents of that letter. This letter, being in reply to Mr. Smith, is such a material part of the evidence, that I wish to present it entire to the Senate:

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

“LEXINGTON, Oct. 26, 1806.

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

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

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

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

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

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

“A. BURR.

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

“Hon. JOHN SMITH.”

NOTES in the handwriting of Mr. Smith.

[†] Mr. J. Smith has heard Colonel Burr and others say that, in fifty or a hundred years, the territory of the United States would compose two distinct Governments.

[‡] Mr. J. Smith presumes that Mr. Burr refers to an invitation to settle in Tennessee, of which he heard him speak.

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

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

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

Spotted a typo or a problem in this chapter? Tell us