APRIL, 1808.]

Case of John Smith.

[SENATE.

him? Is it credible that so gross and absurd an | fact of any moment, the letter, is satisfactorily idea could be entertained by a man of his un- cleared up by the letter itself and Colonel Burr's derstanding? Had he used precautions to pre- answer; and that the other slight and trivial vent Blannerhasset himself from being sifted, circumstances of suspicion are fully explained, there would have been some sense in it but to or resolved into the confusedness and inaccuracy suppose him afraid of the gardener's being sift- of Taylor's recollection. Certainly facts so ed about things, which if he knew them him- doubtful in themselves, so inconsiderable, so self he must have been satisfied that the gar- capable of being misunderstood by the witness, dener could not know, is to impute to him more ought not to have any weight in such a case as folly than those who charge him with a prin- this. cipal 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.

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 And it is not a little surprising, if we are im- person in Ohio, but one. These plans, as explicitly to believe Peter Taylor, that Mr. Smith, plained by Colonel Burr to Mr. Smith, were to after having taken so much pains to keep him form a strong and numerous settlement on the away from the taverns, for fear of his being Washita, and in case of a Spanish war to invade sifted, should immediately have sent him to one Mexico, under the authority of the Government. to get his horse fed; thus exposing him, for the And Mr. Smith, without more aid from the value of a gallon of oats, to the very danger imagination than men usually obtain in such from which he had just appeared so anxious to cases, might have brought himself to believe guard him. "He then showed me," says Taylor, that in case these plans should succeed, they "a tavern, and told me to go to get my horse fed would give rise to a vast trade between the by the hostler, but not to go into the house." country on the Ohio, and the new settlement or Does not this prove that if Smith wished to conquests; that Cincinnati would become the keep Taylor out of the taverns, it was to pre-centre of this trade, and that he, by reason of serve 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 obiect, 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

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, other wise, 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 testi

mony.

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:

[APRIL, 1808.

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 Umon."

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 "After attending some time to the conversation, I and positive in his recollection of Mr. Smith's noticed that a reference was occasionally made to a answer. It is impossible to suppose him mispublication, or publications, in the Marietta paper. taken in a point which interested him so much, For some time I was at a loss to determine whether and must have made so strong an impression on those gentlemen were expressing their own opinions, his mind. This answer of Mr. Smith is utterly or those contained in that publication; for I was not inconsistent with the statement of Colonel Taypresent at the commencement of the conversation, lor; for it is incredible, that after having advothough it did appear to me to be a detail of the opin-cated a separation to Colonel Taylor and Genions set forth in that publication. As it is now im-eral Findley, he should immediately, and in pressed on my mind, I believe, to more fully satisfy their presence, deprecate it to Dr. Sellman as a myself, I asked a question. Nor can I perfectly remember whether I intended the question particularly misfortune, which he hoped, if it must befall for Mr. Smith, or for both the gentlemen; but I be- us, he should not live to see. lieve 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,

Thirdly, as Dr. Sellman was warmly opposed to a separation, it is most certain that his attention must have been very strongly arrested, and

Case of John Smith.

indeed his indignation excited, by such a con- | probability we add the positive testimony of Dr. versation as Colonel Taylor attributes to Mr. | Sellman, I cannot but confidently hope that it Smith; which could not have escaped his at- will remove every doubt on the subject. Had tention, or so soon have been effaced from his memory.

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 signif- | icant 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.

[APRIL, 1808.

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 inen, 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 But, in whatever way we account for his kept the knowledge of it to himself, instead of drawing this bill, it was his own act; an act communicating it as he did to General Carberry. which he had no right to do, beyond the money The bill drawn in favor of Belknap, and paid, left by him in Mr. Smith's hands. To bring might of itself, standing alone, furnish some this act home to Mr. Smith, and make it evi- ground of suspicion against Mr. Smith, as tenddence against him, it must be shown that he ing to show that he was in the habit of supplyhad given Colonel Burr authority to draw. In ing Colonel Burr with funds; but when it comes other words, had agreed to supply him with to be connected with the deposit of money, funds. Drawing the bill is nothing more than which is proved by General Carberry, it is coma declaration by Colonel Burr; and this decla- pletely explained. For nothing was more natration cannot affect Mr. Smith, unless he author-ural than that Colonel Burr, having left his ized 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 I come now, Mr. President, to the seeming thought fit to take this step, am I, therefore, to contradiction between the statement of Mr. be considered as engaged in his schemes? Sure-Smith, and the testimony taken at Richmond ly, his mere declaration cannot be allowed to on the trial of Colonel Burr, upon which I uncriminate Mr. Smith. If it could, how exten- derstand that some stress is laid. I say the sively would the principle operate! How many seeming contradiction," because I feel confiof the best men in the country would be impli- dent of being able to show clearly that no real cated! contradiction exists.

There is another circumstance which strongly confirms the view which we give of this subject. When Colonel Burr directed Jackson to

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.

Mr. Smith, in his deposition before Matthew Nimmo, states that Colonel Burr, early in September, 1806, spoke of the settlement of his

APRIL, 1808.]

Case of John Smith.

[SENATE.

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

Washita lands. By the testimony given at | ing Smith's deposition on the same subject fresh Richmond in the trial of Colonel Burr, by Lynch, in his recollection, he fell insensibly into the from whom those lands were purchased, it ap- use of the phrases. This is known frequently pears that the contract was not made with Col- to happen. Or the resemblance may be merely onel Burr till after the time when Mr. Smith accidental. And surely a resemblance between states this conversation to have taken place. some phrases of these two depositions, which Hence it is inferred that Colonel Burr could not may have proceeded from accident, or from dehave spoken to Mr. Smith of his Washita lands. sign in Nimmo or Glover, is very weak ground But is it forgotten that Colonel Burr was in for inferring the truth of facts so utterly imthe habit of speaking of these lands as his, and probable as those stated by Glover, and so of his intention of settling them, long before the strongly contradicted by the great mass of tesperiod assigned by Mr. Smith for this conversa- timony which we have produced; among tion? This appears from the testimony of which are the declarations of Glover himself, Commodore Truxton, delivered at Richmond and the oath of his friend and confederate on the same trial. He states, that in the sum- McFarland. mer 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 consid-been urged against him; and presented all the ered them as his, though the formal contract facts fairly, and as clearly as was in my power, of sale was not then made; or because he had to the view of this honorable House; I am far then contrived this disguise for his projects, and from intending to trouble it with any arguments merely made use of it to cover his real design, of mine on the subject. The enlightened indifrom Smith and others with whom he thus con-viduals who compose it are much more capable versed. In either case he would speak of the than me of drawing the proper inferences from land as belonging to him. Indeed, this whole the testimony which has been laid before them, argument against Mr. Smith rests on the idea and on which they have bestowed a most patient that Colonel Burr cannot be supposed to have and laborious attention: and to their judgment said any thing that was not true. Mr. Smith I cheerfully, and I may be permitted to say states that Colonel Burr spoke of his Washita confidently, submit the cause of my client. lands, at a time when those lands in fact were They will doubtless bear in mind, that in this not his. Therefore Mr. Smith must have stated cause is involved his honor, dearer to him than an untruth. I believe that gentlemen will not, property or even life; and that in pronouncing on reflection, find this argument very solid. 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.

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 Nim

mo.

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, hav

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 Sen