APRIL, 1808.1 DEBATES OF CONGRESS. Case of John Smith. 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. [SENATE. last degree to communicate confidentially. A 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 brilThis deposition presents another instance of liant post of contractor-general, or paymaster to Burr's army; which, especially when the treasures of Mexico should once be occupied, the same kind, though not equally glaring. Glowould have been so well adapted to Kelly's tal-ver swears that this communication was made ents, 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. to him by Smith, under the strictest injunctions Reviewing, then, Mr. President, all these conMr. President, this tale refutes itself. It is impossible for any man of common sense to be-siderations-the bad general character of Glolieve it. But, independently of external refuta-ver, at all the places where he had lived; the tion, the communication stated by Glover to repeated instances of wilful false swearing have been made by Smith, carries internal evi- which had been fixed upon him; the contradicdence of its falsehood, by the contradictions and tion of this story by his friends and confederCan any ates, McFarland and Nimmo, as well as by absurdities wherewith it abounds. one believe that a man of John Smith's intelli- himself; his enmity to Smith, and Smith's ill gence and knowledge told the ridiculous story opinion of him; Smith's silence on this subject about the frigate which Mr. Somebody was to all his usual confidants and intimate friends; building, or had completed, in the Southern and the inherent contradictions and absurdities States, to be employed in this expedition? of the story itself, I think myself warranted in What! An individual in this country build saying, that the credibility of Glover is coma frigate, to which so few fortunes are ade-pletely overthrown, and that his testimony quate? Mr. Alston, who is probably the per-must be laid out of the case. son 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 I come next to that of Peter Taylor, and here I feel myself greatly relieved, in being able to We are far from a wish absolve him from the guilt of wilful false swearBut we shall show that in ing. His character is said to be fair, and, for aught we know, is so. some of the minute circumstances which he reto impeach it. lates, and which are adduced as grounds of suspicion against Mr. Smith, he probably mistakes, In ascertaining what degree of credit is due and that the others are satisfactorily explained. | [APRIL, 1808. to an honest witness, especially in relating, after But he wrote a letter to Colonel Burr. No a considerable lapse of time, minute facts, which doubt, Mr. President, a letter from Mr. Smith derive their complexion from circumstances ap- | to Colonel Burr, at that time, has in itself a susparently trivial, it is proper, in the first place, picious appearance. But we are made acquaintto consider his education and habits of life, and ed with the contents of the letter, and the susto inquire how far they have a tendency to picion disappears. Instead of being a criminal produce that accuracy and precision of concep- correspondence concerning an enterprise in tion and language, whereon the weight of such which they were mutually engaged, it is a letter testimony almost wholly depends. Apply this informing Colonel Burr of the suspicions afloat rule to Peter Taylor. Admit him to be per- concerning his plans and movements, and refectly honest in his intentions. But we find questing an explanation, for Smith's own satisfac him to be an illiterate laborer, sometimes em- tion. Nothing could be more natural than such ployed as a menial servant. Such a man is a step, on the part of Mr. Smith. Colonel Burr likely enough to have a distinct perception, had long been his acquaintance and friend, and and an accurate recollection, of such facts as he recently his guest. He could not, therefore, be is accustomed to observe. But when he speaks indifferent, either on Colonel Burr's account or of things out of the usual track of his business, his own, to the reports in circulation. These his thoughts, and his observation; when he at- reports were founded on mysterious circumtempts, at such a distance of time, to relate very stances, which Mr. Smith supposed could be minute facts, in which he could not have taken satisfactorily explained, and he wrote to obtain any interest at the time; I ask, if we can im- this explanation. No conduct could be more plicitly rely on the clearness of his comprehen- rational or more commendable. It was kind sion, or the exactness of his memory? Is it not and candid towards his friend, and cautious highly probable that he may have misconceived towards himself. at the time, or forgotten since, some of those circumstances, apparently minute, on which the character of the whole transaction frequently depends? 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 lettery 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 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 pre- But Mr. Smith inquired anxiously about the ceding. He also relates, in his direct testimony, news, in the part of the country from which that when the party left Blannerhasset's island Peter Taylor had come. And what more nahe saw Dudley Woodbridge on the bank. And tural, what more usual, than to inquire the news, it is proved by Woodbridge himself, and by especially in a time of alarm and apprehension! Morris B. Belknap, that Woodbridge was at The operations of Colonel Burr were the subthat time in bed, and was not on the bank at ject of general conversation, and had excited no any time during that night. These are small small alarm. The plot, whatever it was, apmistakes, but they prove that Taylor's recollec-peared to thicken about Blannerhasset's island. tion 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. 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 gar dener and servant was possessed of the secrets of the conspiracy, which might be sifted out of 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 ho 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. 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 It is therefore impossible to suppose that commander of a body of militia, stationed on the Smith's wish to keep Peter Taylor away from the Ohio to oppose Burr's progress, it would have taverns, if he really had such a wish, proceeded been most surprising if Smith, having a knowlfrom any fear of disclosures which Taylor edge of Burr's real plan, had selected this officer might make. It is much more probable that as a person to whom to boast of it. This conTaylor, whose recollection we have already sideration discloses the true nature of Smith's found to be very imperfect, or to whom these communication to Major Riddle. He believed little circumstances could not then have appear-that he knew Burr's plans, and that they were ed to be of any importance, has fallen into a innocent. He therefore told Major Riddle so; mistake in relating them, than that John Smith | but had he really known them to be criminal, 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, แ 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 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 inforined 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 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, 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, be tween 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 at tention was so strongly attracted. Had Mr. Smith advocated a separation, as is now sup posed 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 Tay present at the commencement of the conversation, lor; for it is incredible, that after having advo though it did appear to me to be a detail of the opin-cated a separation to Colonel Taylor and Gen ions set forth in that publication. As it is now im pressed 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, their presence, deprecate it to Dr. Sellman as a eral Findley, he should immediately, and in 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 atten tion must have been very strongly arrested, and APRIL, 1808.] DEBATES OF CONGRESS. Case of John Smith. 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? [SENATE, probability we add the positive testimony of Dr. 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 for the army, was called on for very large supfull and complete. Mr. Smith, then contractor Again: Why should Mr. Smith, on this oc-plies, on account of the additional force called casion 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 He told Taylor himself is of this number. 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, When to this strong and in such a company. to the Sabine. He found, on inquiry from his The next point to which I am to call the at- |