SENATE. out. Case of Mr. John Smith, Senator from Ohio. the two other requests he had an objection. He considered it neither necessary nor proper that the specific charges should in such case be made The charges in this case were repeatedly stated in the report to be founded on the bills found by the grand jury. These, and the evidence on which they are sustained, had been communicated to Mr. SMITH. As to the request to be entitled to the benefit of all the rules of evidence enforced in courts of law. and to compulsory process for the attendance of witnesses, Mr. ADAMS had great doubts whether such a power existed in the Senate. The compulsory process issued by a court was a subpoena to a judicial officer of the United States commanding the witnesses to attend in person. If this order was not obeyed, the court had power to issue an attachment to bring the witness into court by force: and the laws had provided that every such person should be compensated. He would ask, by what process, and under what penalties, the Senate could compel the attendance of witnesses. If they refused to attend, would it be said the Senate possessed the power of issuing an attachment for contempt. Mr. SMITH complains that the proceedings 'against him have been ex parte. Mr. ADAMS said they might necessarily be so on the question of expulsion. If the member were tried as before a court, there must be a prosecutor. Who was in this case the prosecutor? There was none, unless they should appoint an Attorney General. Another complaint, made by Mr. SMITH, was the taking depositions as evidence. But if we go by the rules of courts, not only these depositions, but the Message of the President, (containing the proceedings in the case of Burr) are mere waste paper. We must have all the witnesess here. Another thing. It had been decided in the courts that the President was liable to process, and that he might be required to adduce papers. If this rule apply in this case, we can receive no communication from the President as testimony. We must issue our subpoena duces tecum, to bring him before us, and have him sworn. Mr. A. would ask gentlemen whether this was practicable or possible? He conceived not. As to the reasoning in the report he should say no more about it. The letter and spirit of the Constitution, and every precedent that could be adduced, concurred to show that proceedings of this kind must be summary, and, consequently were not in the least analogous to the rules of courts. JANUARY, 1808. ing of another; but there was a great difference between this and a comparison of hands. In the case of Algernon Sidney, the latter species of proof, it was true, had been admitted; and he had been convicted and executed; but it was known that the admission of this species of evidence had afterwards been the ground for a reversal of his attainder. Mr. MITCHILL remarked that the authority under which the Senate were acting was given by the Constitution, which provides that "each House may, with the concurrence of two-thirds, expel a member." This was a broad power; and there was no particular form or course prescribed for its exercise. The request of Mr. S. is to have the proceedings here similar to those established in the judicial courts. Mr. M. said he did not conceive that the organization of the Senate admitted this. He certainly considered himself in a light very different from that of an accuser.. It was sufficient for him, on this point, that if the gentleman wished a trial, he might have had it at Richmond, by giving his attendance there, instead of remaining at a distance. In this way he might have undergone a purgation by law on specific charges. Why he had not done this, he could himself best say. Mr. M. viewed the power of expulsion as one which was to be exercised under a sound discretion and on the principles of honor and justice, and that the Senate, in discharging their duty, were bound by higher rules than the mere technical rules of law, by the great rule "to do unto others as you would others should do unto you." The organization of the Senate was such as to preclude it from sitting as a court of justice in such a case. Should it resolve itself into a judicial form, the trial of a member would be protracted to an endless length. He could have no idea of their getting through the case this session, and the member might in all probability continue to hold his seat until the expiration of the time of his appointment. For these reasons he believed that another course than that desired by the gentleman must be taken; one, which, although not conformable to the proceedings of a court of law, would be equally conformable to the principles of justice. Mr. M. said, that with regard to the conduct of the principal in this conspiracy, there could be no hesitation in the mind of any man in believing that the design was to sever the Union, and to invade the territory of a foreign Power at peace with the United States, and that the circumstances of the acquittals at Richmond were such that the impression was very strong on the public mind that the individuals acquitted had not wrought an exoneration from suspicion. To these circumstances the committee in their report refer, so far as relates to an alleged accomplice. And if there were an individual in the Senate who The report also stated that in that case a com- had participated in this conspiracy, it was a subparison of hands had been admitted as evidence, ject for the exercise of the sound discretion of the which would not have been admissible in a court Senate, whether such a person should remain in of law. A witness would be allowed there to it. For these reasons, Mr. M. said he was against express his belief that such were the handwrit-complying with the two first requests of Mr. S. Mr. SMITH had charged the committee with an error in citing the case of Blount in support of their opinion. But the report stated that Mr. Blount was called to give evidence relative to a letter with the writing of which he was charged. Was that such evidence as would be admitted in a court of justice? 69 JANUARY, 1808. Case of Mr. John Smith, Senator from Ohio. With regard to the other, although he did not consider it absolutely incumbent on the Senate to grant it, in a case where the gentleman inculpated was present and possessed in himself the ample means of defence; yet when he made the request that he might be so indulged, he could not refuse granting it. Mr. HILLHOUSE Said he should not go into any consideration of the subject, in answer to the gentleman who had spoken, as to the nature of this case. He was not prepared for such an examination; nor had the Senate reached this stage of the business. He could only observe that in the case of Blount there was no such testimony admitted as in the present case. The fact was this: The committee appointed made a certain discovery of a letter alleged to be in the handwriting of Mr. Blount, which could be proved by two Senators present. The declarations of those Senators were not received as testimony; but a magistrate was sent for, and the two Senators were sworn; and there was no testimony received but what would have been legal testimony in a court of justice. They called on Mr. Blount to say whether the letter was in his handwriting; he declined answering; and the call was not enforced. What the gentleman from Massachusetts had read was merely the report of a committee. Mr. H. said it appeared to him premature to go into this discussion at this time. A person was accused. The report in this case was sufficient ground for proceeding without an indictment. In this respect, therefore, he did not think it necessary to do anything. The first point to be decided was, whether this person should have the aid of counsel. If so, it was proper that he should have it, as well with regard to the mode of conducting the trial, as on the trial itself. Such was the course pursued in the case of Blount. He should therefore move that John Smith, of Ohio, be heard by counsel, not exceeding two. After this, other questions as to time and testimony might arise; on all which the accused ought to be heard. Mr. ADAMS did not believe the course recommended by the gentleman from Connecticut correct. It seemed to him extremely improper to bring in counsel to debate with the members of the Senate on every point that might be raised. If this course were adopted, the counsel would become a member of the Senate, and be entitled to make motions, which would be debated by him and the members. So far as the precedent in the case of Blount went-and however he might respect the gentleman from Connecticut, he must respect still more the information contained in the record of that case-he was willing to go. If this were a new case, he might be of a different opinion. He believed that in the country from which most of their precedents were derived, it was wholly unprecedented for counsel to be heard on a motion of expulsion. But he had no objection to the allowance of counsel to show why the report should not be adopted. But to place every member of the Senate in the same situation with counsel was highly improper, and yet this would 70 SENATE. infallibly follow should the ideas of the gentle- Mr. B. said he considered the course pointed out by the gentleman from Connecticut correct. The only existing motion was to allow Mr. SMITH to be heard by counsel, to which there did not appear to be any objection. He should, indeed, think it strange if there were, as in justice and candor the Senate were bound to give him the same advantages that were allowed to any other person on his defence. It was a maxim of the best lawyers that no man ought to be counsel in his own case; for when we are agitated by those feelings which are unavoidably excited when our lives, our characters, or property, are at stake, we are seldom able to conduct our case with that coolness and perspicuity often essential to a favorable issue. As this case too would form a precedent, it ought to be considered what a disparity of talent characterized even the members of the same body. The gentleman from Massachusetts, for instance, might be able to make a powerful defence, while other members, not possessed of the same intellectual attainments, or not accustomed to public speaking, might experience no inconsiderable embarrassment. Such, Mr. B. believed, was in some measure the situation of the present party, who was not a professional man, and not so exten SENATE. Case of Mr. John Smith, Senator from Ohio. sively in the habit of public speaking as other members of the Senate. Mr. B. viewed it premature to decide what course should be taken by counsel. It would be prejudging the case to decide on these points before a hearing; it would be first to punish and then to listen to the defence. If, said he, the benefit of counsel is allowed, let us do it in a handsome, in a liberal manner, worthy the dig nity and character of this body; and not in such a way as to exhibit the mere semblance and shadow of justice. Mr. B. said he did not think it necessary to go into a detail on the request made by Mr. SMITH. As to being furnished with a specification of the charges against him, he thought nothing could be more reasonable. Was he to be suffered to wander in darkness? How could he be prepared for defence until he knew what the charges were? To furnish a specification of the charges preferred against an accused man was consonant to all the proceedings which he knew of, not only in this country, but in every country on earth where there existed a shadow of liberty. Were they to be told that the life of Mr. SMITH was not jeopardized; that even his property was not implicated. True. But he would appeal to the honorable feelings of the body, whether his interest in this decision might not be more valuable to him and his posterity than if he were to be sent to the scaffold and his property be confiscated. Its effect was to deprive him of his honest fame, which would be forever gone. Wherever such an interest existed, they were bound to protect the reputation of an individual by the same principles and rules which were provided by the benignant indulgence of the laws in cases where life and property was implicated. Mr. B. could not say that the charges ought to be specified with the minuteness of a special pleader. But they ought to be so specified that the accused could clearly comprehend and meet them. When, however, he referred to the resolution, he was ready to consider it as sufficiently explicit, and willing to rest this point on that ground. The next question is, whether Mr. SMITH Shall be allowed to make any defence, and if so, by what rules of evidence it, as well as the charges against him, shall be supported. I have read, said Mr. B., the report of the committee. It is certainly an eloquent report. I do not say that I approve all the principles it maintains, but I am willing to allow that it is drawn by the hand of a master. It has, however, one fault, and that is, that it does not bear on the point in question. On abstract principles it is very elaborate; but it leaves the mind, so far as relates to this case, as barren of information as it was before. I do not consider the question to be, whether there was a conspiracy of which Burr was the author. That such a conspiracy did exist I firmly believe; and I further believe that scarcely a man in the United States doubts it. Nor is it the question, whether the course pursued against Burr has been as discreet as it might have been, or whether certain alleged subtilities ought to have been discarded JANUARY, 1808. by the courts of law. The only question is, whether JOHN SMITH did participate in this conspiracy. If he did, even in the smallest criminal degree, I shall have no hesitation in giving my vote for his expulsion. But Mr. SMITH declares that he had no criminal participation in it. He says his doors may have been hospitably opened to Aaron Burr. and though appearances may to a certain degree be against him, he had no criminal intent-he contemplated no severance of the Union-he meditated no invasion of the territory of a nation in amity with the United States. Give him an opportunity, and he says he can explain everything alleged against him. I am not making the defence of JOHN SMITH, I am only contending that he ought to be heard. But what signifies hearing a man, if he be not given an opportunity of defence? What is the question? Merely a question of fact, whether he be guilty or innocent of this participation. Will you not allow him to be tried? How? By evidence. And what is the ordinary evidence in such cases? That of witnesses. Suppose he is accused on the testimony of a single individual? I demand, whether you will suffer your zeal to punish the offence, so far to transport you, as to lead you to punish without investigating the evidence? Would not this be a mockery of justice, to say you will hear the defence, and yet not investigate the credibility of testimony? In reply to the remark of Mr. ADAMS, that this case was different from ordinary cases, inasmuch as there was no prosecutor or party, Mr. B. said that the committee was to be considered as taking a part in it. But it was said that from the nature of the case it was necessary to be expeditious, and that the decision did not admit of delay. Mr. B. said this wore too much the semblance of that revolutionary spirit which had been so conspicuously displayed in another country. The only question was a mere question of fact; and instead of determining this on the established principles and rules of common law, gentlemen contend for our taking our own conceits and whims for evidence. If, said Mr. B., you will not take the ordinary rules of evidence, what rules will you take? Will it be said that mere hearsay shall be received; or ex parte depositions taken in a case not connected with that under consideration? I beg the House to consider the consequence of such procedure. Though such a decision may be fair in this case, who will pretend to say what may not be the consequences of such a precedent? If such a principle is to prevail, what more will be necessary than to send to the woods, take the deposition of a man you know nothing about, and in which there may consequently be the vilest perjury, and receive this as proof, without giving the party accused an opportunity of defending himself? A more dangerous principle cannot be established. As to the precedent relied upon, the gentleman from Connecticut has shown that the observations of the gentleman from Massachusetts are not correct. [Mr. B. here read extracts from the Journals, to JANUARY, 1808. Case of Mr. John Smith, Senator from Ohio. show that, what had been ascribed to the Senate, was only the act of a committee.] Mr. B. said he was not, in these remarks, finding fault with the report of the committee, who were only to be considered in the light of a grand jury or inquisition, whose opinion was not final. In the case of Blount, the Senate, after a report of a select committee, had required the same strictness of evidence that is required in criminal cases. It was not possible in a civil or criminal case more strictly to prove a paper, than had been done in that instance. SENATE. to say that his speech related to anything but the subject before the Senate? The remarks of the gentleman related to topics that might be very properly discussed before the final decision of the Senate. As to the admissibility of testimony, Mr. A. did not consider that point as precluded by the motion. But there were some remarks offered by the gentleman, which Mr. A. could not hear and remain silent. The gentleman had observed, that he could not say there was, in this instance, no party, but that the committee was that party, that the committee was an inquisition. There was, moreover, a strong distinction between the case of Blount and this case. In the Mr. BAYARD disclaimed any reference to a first case there was but one point of fact; the let- Spanish inquisition; he merely meant by "inquiter being proved to be that of Mr. Blount every-sition" a term equivalent to grand jury. thing was established. He denied it; when proved, stronger evidence could not be adduced. How different is this case! There is no letter of Mr. SMITH that establishes his guilt. He is charged with participating with Col. Burr. How are points which go to establish this participation to be met but by witnesses from Ohio? With regard to one witness, Mr. B. said he was informed that Mr. S. believed himself able to disprove his allegations by other witnesses. Mr. B. said, he would ask gentlemen to bring the case home to themselves. Suppose a deposition taken, several hundred miles off, criminating them, and that they had the means of proving it false by distant witnesses? Could anything be more injurious to them than to precipitate a trial, and prevent the party from meeting fairly and fully the accusation against him? Mr. ADAMS said, he had no idea of being himself a party in this case. So considering it, he must view everything said on this point irrelevant. The gentleman asks, if we depart from the principles of a court of law, what principles we will follow? Whether we will follow our own conceits, and whims, or mere hearsay? No, sir, said Mr. A., I desire the Senate to take none of them. I wish them to take for their guide a sound discretion, what the Constitution requires and es him the value of. It is as necessary here as what every man's experience in private life teachanywhere else. Why take the rules of evidence as prescribed in a court of justice? Are there no other rules? I say those rules are most propfrom those halls we must take others. No man erly confined there; and the moment we issue who has a sense of religion can take them without departing from his faith. Why are we bound Mr. B. said, he had gone further than he had by them any more than a man is in his private intended when he first rose. He had no other ob- family? Suppose a man detects his servant in ject in rising than to point out the course which stealing, and tells his other servants to turn him he thought ought to be pursued. The present out of his kitchen? Would he listen to the requestion simply was to allow counsel. He did monstrance, that he was acting unjustly, because hope and presume there would be no difficulty on the act was not proved in a court of law, accordthis point. In his opinion, the Senate ought noting to the technical rules of evidence, and wait to decide whether the party should have compulsory process for the attendance of witnesses until counsel were heard, although he perceived no defence which could be made by the party without such evidence. He concluded by expressing a hope, that, if if it should be found, that Mr. S. did participate in the conspiracy of Aaron Burr, they would all concur in the final vote they should give. Mr. ADAMS said, he would not trespass on the time of the Senate by entering into the wide field the gentleman from Delaware had indulged in, when the only question was on the amendment. The gentleman had commenced his remarks by saying, that this amendment would make no alteration in the original motion. Well, if it made no alteration in it, was it necessary by a speech of an hour-and-a half to enter into such a wide discussion? In fact, Mr. A. said, he did not yet know, whether the gentleman intended to vote for the amendment or not. He had not informed them on this point. He had, it was true, told them the report related to any other than the subject before them. Might he not so far retort as until it was so proved? I presume not. Well, if a man, in all the transactions of life, is not bound by those rules, why are we bound by them, when the Constitution gives us a discretion to act as we see fit? Discretion is neither whimsy nor caprice. But when the gentleman proceeds and inquires whether we are to take ex parte depositions, that is another thing. Such depositions have been taken, not only against, but for, Mr. SMITH. Indeed, two-thirds of them are of the latter description. The nature of this species of testimony will be weighed, and we may safely trust to the reason and discretion of every Senator to give it its proper weight. The gentleman says, as to the conspiracy of Burr, it is admitted, on all hands, there is no question. In so saying, the gentleman undertakes to answer for more than he (Mr. A.) would, as it is very probable, if counsel should be allowed, they would make this the first point. They will tell you that the conspiracy must be first proved by testimony admissible in a court of justice. The gentleman contends for the ground of pre SENATE. Case of Mr. John Smith, Senator from Ohio. cedent in the case of Blount, and says that the depositions of the two Senators was the only evidence received in the Senate on that occasion. Did the gentleman, in a court of justice, ever hear a judge ask the accused if he wrote a letter containing matter against himself? If he has, it is a kind of court of justice, Mr. A. said, he had never heard of. This very question was put in the case of Blount. There was no answer. But was it not considered as evidence? If not, why was it asked ? Mr. A. said, he should not enter further into the subject. The gentleman, with great eloquence, had argued in favor of allowing counsel. To that no objection had been made. In support of this request, it had been said that a member may be accused who has not the faculty of public speaking. This, Mr. A. believed, was not the case with regard to the member implicated, but if it were, and counsel should not be allowed, he believed that, in the opinion of the Senate and of the world, he would not be destitute of counsel. Mr. ANDERSON observed, in support of the amendment, that it specified the subject on which counsel were to be heard. Without such specification there would be no data for them to act on. Being a member of the committee that brought in the report, although the observations of the gentleman from Delaware were irrelevant to the question before them, Mr. A. said, he should take some notice of them. The gentleman said when he looked around him, he could not say there was no party [Mr. BAYARD explained, and disclaimed any insinuation that any member of the Senate was a party against Mr. SMITH. He only meant to say that the committee had an active agency in bringing forward the charges.] Mr. ANDERSON then explained the manner in which the business originated at the instance of Mr. SMITH. Mr. A. added that, when the whole subject came before the Senate, it would be found that the report was not founded on a single witness or deposition; and that the witnesses had been examined by Mr. SMITH. He had only thought it proper to say thus much at this time, as the other points introduced were altogether irrelevant. JANUARY, 1808. Mr. GILES thought it would be best to limit the number of counsel. He wished, however, to ask whether Mr. S., while this business was pending, had a right to a vote as a Senator, as this circumstance might greatly influence his mind. The bodies from which they usually derived their precedents were only considered as bound, on a question of expulsion, by a sound discretion. Could the Senate lay their hands on a member while such a question was pending? If not, and the ideas avowed by gentlemen should prevail, a decision might be protracted to the full period of the member's time of service. And, if they could, the effect would go to deprive a State of half its representation. He made these remarks to show that this case was extremely different from those cases ordinarily brought before a court of justice. Mr. G. said that the case of an impeachment was very different from that of expulsion, for which the Constitution had prescribed different modes of procedure. In the former they sat in a judicial character, while in the latter they appeared to act in their legislative capacity. From this it would seem that a very different course ought to be pursued in the two cases. A gentleman had inquired what security there could exist, if the procedure of courts of justice were violated? That, said Mr. G., arising from a sound discretion, which I believe as efficient as that which rests on the technical rules of law, and to guard which against abuse, the concurrence of twothirds of the body is requisite. Mr. G. said, he had one word to say as to the would show, by his own remarks, that he was ideas of the gentleman from Delaware. He served that he is persuaded that all America is guided by contradictory principles. He has obsatisfied that Aaron Burr is guilty of a conspiracy. Did this conviction arise from the proceedings at Richmond? No. And yet he is of opinion that he is guilty; in which, I, said Mr. G., concur, It must be, therefore, on other principles than those of courts of justice. I conclude, therefore, that we must, under such circumstances, resort to different principles. Mr. CRAWFORD withdrew his motion. Mr. S. SMITH asked for the yeas and nays, lest, from the length of time taken up by the gentleman from Delaware, there might be some imMr. HILLHOUSE said he had no objection to the pression made on the public mind, that there examendment, as from the explanation of gentle-isted an objection to the allowance of counsel. men it did not appear intended to exclude discussion on any preliminary questions that might be raised. Before he sat down, he wished to know whether the gentleman from Massachusetts, in his closing observation, referred to him? whether he meant to insinuate that he was acting as advocate or counsel for the individual accused? He did nothing but from a sense of impartial justice, and the duty he owed his country. Mr. CRAWFORD saw no reason for restricting the number of counsel, and moved to strike out the restriction. Mr. ANDERSON, viewing the allowance in the light of a favor, was for limiting the number of counsel. Mr. BAYARD said, if the gentleman from Maryland had attended to his remarks, he would not have made this observation, as they had arisen naturally from the ideas expressed by the gentleman from Massachusetts. He was sensible of the embarrassment suggested by the gentleman from Virginia; he was, however, also sensible of the justice due to an accused member of the Senate; and, if they decided without evidence, they would condemn him unheard. To allow him counsel, without allowing him the means of defence, would be a mere mockery of justice; it would be to allow the form, and deny the substance. They had been told that the Senate ought to be governed by a wise discretion. To show the light in which |