SENATE.

Case of Mr. John Smith, Senator from Ohio.

Aaron Burr; provided, in case Mr. Smith shall adduce evidence to discredit any witness whose testimony has been made use of against him, that he shall make it appear to the Senate that reasonable notice had been given to the witness, so intended to be discredited, of the time and place appointed for the taking of such evidence, and that he was served with a copy of this resolution.

MONDAY, January 18.

The PRESIDENT communicated the general account of the Treasurer of the United States, from October 1, 1806, to October 1, 1807; as, also, the accounts of the War and Navy Departments for the same period; together with the reports of the accounting officers of the Treasury thereon; which were read for consideration.

A message from the House of Representatives informed the Senate that the House do not agree to the amendments of the Senate to the bill, entitled "An act to continue in force, for a limited time, an act entitled 'An act continuing for a limited time the salaries of the officers of Govern

ment thereon mentioned."

The Senate took into consideration the resolution of the House of Representatives disagreeing to their amendments to the bill, entitled "An act to continue in force for a limited time an act, entitled 'An act continuing for a limited time the

salaries of the officers of Government therein mentioned;" and receded from their amendments to the said bill.

JANUARY, 1808.

SMITH) had no objection to going on with the examination of Colonel Taylor as soon as his counsel came from the court-room, where he was now engaged, which he was advised would be in about half an hour; the other was, his wish to be excused by the Senate from voting on any question until a final decision on the question of expulsion.

The PRESIDENT said the Senate could make no such order.

Mr. BAYARD intimated that this would not be

an inhibitory order of the Senate, but the mere allowance of the prayer of a member, who, on his own application, would be excused from voting, and that such an allowance was frequently made

in individual cases.

Mr. GILES said that the gentleman from Delaware had exactly stated the grounds on which in the light of a prohibitory order, but as an order the application was made. It could not be viewed passed at the special instance of Mr. SMITH. Mr. G. observed that he had been induced to make this application because he thought it right in itself, and as it had been often done in particular cases. The present question was, whether, in this case, there was good reason for the request. For his own part, Mr. G. said, he perceived no objection to excusing Mr. SMITH from voting, although he should be averse to laying any prohibition upon him.

Mr. ADAMS said if the right of Mr. SMITH to vote centered in himself, he should have no obThe Senate resumed, as in Committee of the jection to this application. But, by the appliWhole, the second reading of the bill to extin- cation, it was required that not only he, JOHN guish the claims of the United States to certain SMITH, should not vote, but that the State of balances reported to be due from several of the Ohio should lose one vote in that body until a States to the United States, by the Commission- final decision of the question of expulsion. It ers appointed to settle the accounts of the indi- came, therefore, in a different shape, and assumed vidual States with the United States; and the greater importance than a mere question respectPresident reported the bill to the House withouting Mr. SMITH. As it respected Mr. SMITH indiamendment.

On the question, Shall this bill be engrossed and read a third time? it was determined in the affir

mative.

CASE OF JOHN SMITH.

Mr. ANDERSON moved that the Senate proceed to the examination of Col. James Taylor, at their bar.

Mr. MACLAY, after some preliminary remarks to show the incorrectness of further delay, moved to postpone the motion, for the purpose of taking into consideration the report of the day of December.

A short conversation ensued on the course of procedure, in which it was remarked that, as Mr. SMITH had made some complaints relative to the examination of Colonel Taylor before the committee, and as he (Colonel Taylor) had been a long time absent from his family and was extremely anxious to return home, it was most advisable, before any further steps were taken, that he should be examined.

Mr. GILES rose to state to the Senate two circumstances which had been mentioned to him on the part of the accused. One was, that he (Mr.

vidually, Mr. A. did not know why he had asked to be excused from voting on the questions that might come before the Senate. Had he ever been compelled, or even called upon to vote? Why, then, were the Senate called upon to say, by an act of theirs, that the State of Ohio should be deprived of a vote in the Senate until the final decision of this question? If Mr. SMITH himself chose not to vote, he was satisfied he would not be compelled to vote, and if he wished to vote, Mr. A. knew of no authority the Senate possessed to refuse him. Such a refusal would be a sacrifice of the rights of Ohio.

Mr. ANDERSON was against agreeing to this application, as its allowance would virtually go, by excusing Mr. SMITH from voting on all other questions, to admit him to vote on his own case. It was, moreover, going too far thus to deprive. by an act of the Senate, a State of one-half of its representation in that body. If Mr. SMITH did not vote, it ought to be his individual act, and not that of the Senate.

Mr. GILES said that, to save time, and to enable the Senate to deliberate further on this point before they decided upon it, he would withdraw the application for the present. He did not, however,

Case of Mr. John Smith, Senator from Ohio.

SENATE.

Case of Mr. John Smith, Senator from Ohio.

JANUARY, 1808.

mittee considered this as not only correct in itself, but obligatory upon the Senate. I, said Mr. A., as a member of that committee, thought it not obligatory, though I assented to the resolution. I thought, and still think it a measure resting with the discretion of the Senate to adopt or refuse. Nor do I think, if this resolution shall not be adopted, that such a refusal could be considered as refusing a hearing. Notwithstanding, however, this opinion, I gave it my assent, and although circumstances have since occurred which render delay less necessary, I am still in favor of it.

ciple of denying to Mr. SMITH the opportunity of obtaining this evidence. To deny him such an opportunity, Mr. B. should view as equivalent to an absolute denial to hear him. For what, said he, is a bearing? Not the vain words of counsel unsupported by evidence. Mr. SMITH is charged by the allegation of certain facts. If, then, he is not heard in his defence through the medium of facts, he is substantially not heard at all. I will put the case, that, under present circumstances, grounds of suspicion exist that render him unworthy of a seat in this body. But how often has every man, conversant with criminal justice, on the hearing of ex parte evidence, decided one way, and afterwards on hearing both sides decided otherwise? I would ask gentlemen, what they would say of the judge or jury who, on hearing one side, should declare that the case was so plain that it would be a waste of time to hear the other? Is this procedure sanctioned by any court in this country, or in any part of the world? It is a mockery of justice to say to an individual accused, we will hear you, and yet preclude him from all possible means by which he can be fairly tried. Mr. SMITH says he can adduce proof to show the existence of a conspiracy to destroy his char-weakened by the evidence of Colonel Taylor at the acter; unless, therefore, you allow him a reasonable time, you prejudicate his case. You refuse him the means of a defence.

Further, the committee viewed this, not merely as a decision on the personal application of Mr. SMITH, but as establishing an important precedent that would not be confined to this individual case. Let it also be observed that the charges in this case are generally founded on conversations charges which, even if unfounded, are, from their peculiar nature, the most difficult to be repelled. Shall we, under all these circumstances, say we will hear Mr. S., and yet not listen to his defence? If we will not allow him a reasonable time, we may as well decide on his case at once; for to allow him counsel, without giving him materials for a defence, will be a burden instead of a benefit.

Mr. FRANKLIN, of North Carolina, spoke against the amendment He read the provision of the Constitution that authorizes the expulsion of a member, and then observed that a member might be expelled on various grounds, some of which, such as disorderly behaviour, might occur under the eye of the Senate, in which case it would be unnecessary to go abroad for testimony; but that the charges in this case were not of this nature. They had been preferred on testimony received from a distance; and all that Mr. SMITH asked was the indulgence in the same right of going abroad for evidence to confront that brought against him. And if, as he alleged, he could defend himself by this testimony, Mr. F. was of opinion that the first of March allowed him no

more time than was reasonable.

[Mr. ADAMS here specified some of the prominent points of Colonel James Taylor's testimony before the Senate, as highly corroborative of his previous testimony before the committee. And as to the evidence of Peter Taylor, Mr. A. said it was strongly supported by a late article of the Richmond Enquirer, which he read.]

Mr. ADAMS observed that, under these circumstances, the probability that Mr. SMITH would be able to discredit the witnesses, who had testified against him, was very much weakened. He might go on, and say that the importance of discrediting Glover's testimony was also very much

bar of the Senate; for the gist of Mr. SMITH'S affidavit was to show that the charges against him had arisen from a confederacy between Nimmo and Glover. Whatever the testimony of Nimmo and Glover was, it appeared, that it was not transmitted to the Executive until December, 1806; while, by the evidence of Colonel Taylor, it appeared that he had communicated grounds of suspicion totally separate from Nimmo and Glover, six weeks previously.

Mr. ADAMS concluded by observing that, notwithstanding these strong circumstances, he was not disposed to refuse the indulgence desired by Mr. SMITH; not because he believed he would not be heard without it, or that he had not already been allowed ample time to collect testimony, or that it was obligatory on the Senate to allow further time; but because he was willing to allow him every indulgence consistent with a shadow of reason.

The question was then taken by yeas and nays on striking out "the first of March," as follows: YEAS-Messrs. Anderson, Condit, Gilman, Kitchel, Maclay, Mathewson, Moore, Parker, Robinson, and Smith of Tennessee-10.

NAYS-Messrs. Adams, Bayard, Crawford, Franklin, Gaillard, Giles, Goodrich, Gregg, Hillhouse, Howland, Milledge, Mitchill, Pickering, Pope, Reed, Smith of Maryland, Smith of New York, Sumter, Thruston, Turner, and White-21.

The yeas and nays were then taken on the original resolution, and are as follows:

YEAS-Messrs. Adams, Anderson, Bayard, Condit, Crawford, Franklin, Gaillard, Giles, Goodrich, Gregg, Hillhouse, Howland, Kitchel, Milledge, Mitchill, Pickering, Pope, Reed, Smith of Maryland, Smith of New York, Smith of Tennessee, Sumter, Thruston, Turner, and White-25.

Mr. ADAMS said he should not have risen, had not the gentleman from Delaware stated the motives of the committee in allowing Mr. SMITH until the first day of March to adduce additional testimony, and had he not stated that the com- | Parker, and Robinson—6.

NAYS-Messrs. Gilman, Maclay, Mathewson, Moore,

JANUARY, 1808.

Case of Mr. John Smith, Senator from Ohio.

On motion of Mr. ADAMS, Ordered, That the Secretary of the Senate cause to be obtained, from the files of the Circuit Court for the Virginia district, a certified copy of the papers under the signature of the Querist, and a file of the Enquirer for the year 1807.

SENATE.

the course of proceedings in the Senate were such, that they must take such testimony as they could get, and rest satisfied with collecting it by the best means in their power.

Mr. POPE called up for consideration the reso-Massachusetts. lution, offered by him some days since, which, as amended at his instance, was read as follows: Resolved, That the Secretary of the Senate do issue a summons [in the original resolution, subpoena] in the usual form, to cause to be summoned to appear before the Senate, on the first day in March next, Elias Glover and William McFarland, then and there to give testimony in the case of John Smith, a Senator from the State of Ohio, regarding his alleged participation in the conspiracy of Aaron Burr.

Mr. POPE said, if there was no opposition to its adoption, he should be averse to trespassing on the time of the Senate; but if there were objections to it, he should think it his duty to assign the reasons that induced him to offer it.

Mr. POPE said, he was not a little surprised at the arguments adduced by the gentleman from He did not care for the mere words of the proposition he had submitted, or whether the term "subpœna" was retained or stricken out. It was the principle only of the resolution which he regarded. Mr. P. said he must acknowledge that, on this subject, he was so unfortunate as to entertain ideas which were considered in the Senate as of a peculiar character, although sanctioned by the usage of ages. Having been recently translated from the bar to the Senate, he might perhaps have been mistaken in his opinion of the course most proper to be pursued on this occasion, and have considered the Senate as too much under the influence of rules of law. But he must say, that whatever errors might have tinged his first impressions, he still viewed the Senate as bound by the rules of equity and justice.

Mr. ADAMS said he certainly had some objec tions to its adoption. In the first place it imposed a duty on the Secretary which he would find it What was the object sought for in this case? difficult, if not impracticable, for him to discharge. To ascertain whether John SMITH is guilty of a It required a subpoena to be issued in the "usual certain criminal conduct. [Mr. P. here read the form." What form? Mr. A. questioned whether resolution offered by the select committee for exthis would not be the first subpoena ever issued by pelling Mr. SMITH.] Is it not evident, then, said him. If it were meant that it should be in the Mr. P., that we are now sitting to try and deterusual form prescribed in a court of law, Mr. A. mine whether Mr. SMITH has been guilty of this doubted whether the power to issue it resided in criminal conduct? And ought we not, in so dothe Senate. The process of a court was issueding, to observe the rules best calculated to ascerunder law, and under a penalty attached to non-tain the truth? What, then, are the best means attendance. Should a witness refuse to attend, for attaining this end? Indisputably, by having he was liable to further process to coerce his at- the witnesses brought to our bar, who can furnish tendance; and the same law likewise provided important information. I ask every member whethat witnesses thus summoned should be compen- ther his mind will not be best satisfied by the pressated. Mr. A. said he knew of no such power in-ence of the witnesses, which will afford the fullest herent in the Senate. In cases of impeachment, it was true, certain processes had been issued in the nature of subpœnas; but actual subpoenas had never been issued. A summons had been issued, but not under any penalty for non-attendance, and certainly no process of attachment had ever been issued by the Senate to enforce the attendance of witnesses. Besides, if one witness is summoned, the Senate may be called upon to summon an hundred. And suppose the witnesses summoned shall not attend. Have you not, by summoning them. acknowledged their materiality? And might not their non-attendance be a ground for a continuance? Suppose a party, for the purpose of producing this effect, wishes a witness not to attend, and he summon him, and he does not attend, where will the delay end?

Further, the Constitution says no money shall be drawn from the Treasury but under an appropriation made by law, which requires the concurrence of the two Houses. What assurance have we that the other branch of the Legislature will authorize the compensation of witnesses? Have we not, in the case of an impeachment, beeu for two years in collision with the other House on the compensation of witnesses?

Mr. A. concluded by observing that he believed

means of obtaining a correct statement of facts. Are not the benefits of the cross-examination of witnesses acknowledged by every man in the least conversant with courts of justice? And is not this invariably considered as the right of the accused? A right not derived from any rule of strict law, but from the principles of natural justice. I am equally surprised at the doubts expressed of our power to summon witnesses. If we have a right to inquire into the conduct of a Senator, we have necessarily a right to every incidental power essential to the making the inquiry. Where a power is given by the Constitution to do a particular thing, I have always deemed it a sound construction, that, by necessary implication, every incidental power is given which is necessary to carry the main power into full effect. But it is said that we have no fund out of which to compensate witnesses, and that the concurrence of the other House must be obtained before they can be indemnified. But are we, in the discharge of an important duty, involving the dearest interests of an individual, to act on the idea that the other House will not concur in providing for the expenses necessarily attendant upon it? The case of the impeachment of Chase has been instanced; and what is that case? In that case process was

SENATE.

Case of Mr. John Smith, Senator from Ohio.

issued for witnesses to ascertain certain facts; and I ask whether, previously to the issue of process, any law was passed making provision for defraying the expenses either attendant on their service, or for compensating the witnesses? This case therefore furnishes a strong argument against the conclusions of the gentleman from Massachusetts.

JANUARY, 1808.

witnesses in his defence. This, however, will altogether rest in the discretion of the Senate. While I contend for the propriety of summoning these two witnesses, let it not be understood that I am in favor of summoning witnesses to every collateral point. For while I deem it important to summon witnesses to establish the most important features of this case, I think depositions will answer as to the general character of the

One other idea operates on my mind in favor of adopting this resolution. We have passed a resolution authorizing Mr. SMITH to take such depositions as he pleases to assail the character of Mr. Glover. If Mr. G. is anxious to defend his character, he will no doubt feel disposed to travel here at his own expense. But is it not just that his expenses should be defrayed; and will it not be a piece of oppression to him not to grant this process?

It may not be improper for me here to express my ideas of the powers of the Senate on the ex-witnesses. pulsion of its members. By the Constitution the Senate are empowered with the concurrence of two-thirds to expel a member. It follows that the Senate has, on this point, unlimited power, and, as incidental to its exercise, the power of receiving any kind of evidence that shall be satisfactory to them. In some cases they may expel a member for disorderly behaviour passing under their own view; they may, in other cases, expel on common fame; and in others, on account of his being found guilty of some particular, infamous crime; and some gentlemen seem to be of opinion, that a member may be expelled in consequence of having lost the confidence of his constituents. This resolution, however, is not bottomed on any of these circumstances, but on al-tain records. How are we to pay the clerk the leged particular criminal conduct. Is it not then proper to investigate whether Mr. S. has been guilty of this conduct or not? For recollect, when this body pronounces on the alleged charges, they pronounce to the nation that Mr. SMITH stands condemned of being guilty of treasonable conduct.

Before I sit down I will suggest one other idea with regard to the power of the Senate in this case. Suppose a question of expulsion to arise dependant on record evidence, and a summons should go to the clerk at Richmond to send cer

expense of getting attested copies of these records? Out of what fund is it to be drawn? Is it not clear that we must depend on the concurrence of the other House in defraying it. So, in the present case, we ought to take it for granted that the other House will do what is reasonable and just.

Mr. REED observed that Peter Taylor was a material witness in the present case, and he could see no reason for drawing a distinction between him and Glover and McFarland. All their characters were implicated. If one, therefore, was summoned, he thought they should all be summoned, and he should vote against the resolution. unless Peter Taylor was likewise introduced into it.

Mr. POPE said, if the gentleman from Maryland wished the name of Peter Taylor introduced, he hoped that he would make a motion to that effect. He had no objection to summon him like

It may, perhaps, be contended, that after the indictments found against Mr. SMITH at Richmond, and after the rumor of his participation in the treasonable schemes against the peace of the Union, the Senate ought, on common fame, to expel him. I am, however, of opinion, that this is not the proper course, but that it is right to give him an opportunity of defending himself. One of the witnesses deemed material in this case is Mr. Glover. So far as we know anything of him he possesses a fair character. But his deposition has been taken ex parte. In Mr. SMITH's answer, it appears that Mr. McFarland was pres-wise. ent at the conversation alluded to in that deposi- Mr. GILES remarked that the suggestion of the tion. As then the testimony of Glover is admit- gentleman from Maryland furnished a strong arted to be important, is it not proper to obtain the gument against the original resolution. If the best evidence the nature of the case admits of? I Senate adopted the principle contained in that confess that, for one, I feel some difficulty in pro-resolution, there would be no end of the exercise nouncing a man guilty on ex parte evidence. Let of the power of summoning witnesses. Supposé, us put the case home to ourselves. Suppose an after we have adopted this resolution, Mr. SMITH individual should send a deposition from Ken-comes forward and says he has many material tucky charging me with an infamous crime. Would I not have reason to think the Senate guilty of injustice, should they not give me an opportunity of cross-examining the witness on whose evidence the charge was founded? But it is said the witnesses summoned may not attend. Well, if so, we shall have done everything in our power to obtain the best evidence, and we shall then be compelled to give the evidence we have the weight which its ex parte character deserves. Again: it is said, if we summon Glover, Mr. SMITH may call upon us to summon a hundred

witnesses, and that he considers it extremely hard that they should come on at his expense. If the Senate regarded the obligation of consistency, would they not be obliged to summon these witnesses on the part of Mr. SMITH? With the gentleman from Kentucky, I foresee many inconve niences attending the present mode of procedure. But the question is, whether we are in a capacity to remedy them? I believe that we have already provided for the protection of witnesses in the resolution adopted, as far as we can. I am satisfied that all we can do in this case is to take vol