ARRIL, 1808.] DEBATES OF CONGRESS. Case of John Smith. strong presumption against this conclusion. The next circumstance, in point of time, from which inferences injurious to Mr. Smith are drawn, happened on the 2d or 3d of December, at Frankfort, in Kentucky. At this time and place, Burr was attending on the court upon his second trial. Mr. Smith was drawn thither by business, when a short interview took place between himself and Burr, very immaterial in The ground of its objects or consequences. crimination deduced from this circumstance, is, that Mr. Smith did not voluntarily attend the court as a witness against Burr, and testify to the disclosures which Burr had made to him Mr. Smith upon his last visit to Cincinnati. stated, at the time, his willingness to attend, but believed he knew nothing relevant to the ground of charge against Burr. The gentleman from Massachusetts differs from Mr. Smith in opinion on this point, and conceives that if Mr. Smith had attended that court, and disclosed what he has since disclosed, in relation to Burr's last communications to him, it would have been sufficient for Burr's conviction. I differ entirely from the gentleAll that we know relative man on this point. to Burr's disclosure of his views, at that time, What was is furnished by Mr. Smith himself. disclosed, it would probably be best to from Mr. Smith's own words: take [SENATE. What is here disclosed? Two objects only. The first to settle his Washita lands; the second, in the event of war with Spain, to head a comWhat was the charge against pany of volunteers, and be the first to march into Mexico. Burr? A misdemeanor, by beginning and setting on foot a military expedition or enterprise" against a nation with which the United States were at peace, &c. Would this evidence have had any tendency towards supporting this charge? Certainly not. Spain had nothing to do with the settlement of the Washita lands, and with respect to the contemplated military expedition into Mexico, it was to be undertaken only in the event of war, and of course could The evidence, be no violation of a law which forbids such enUnited States are at peace. terprises, only against nations with which the therefore, could not support the charge; and whether such enterprise in time of war would have been lawful or not, would have depended upon the circumstance of the partisan's acting with or without a commission from the United States, but the gentleman from Massachusetts remarks that this pretended condition, upon which the expedition against Mexico was to be undertaken, was too thin a disguise to impose upon the most credulous or ignorant. I will disguise; but did every body think so, and parhere admit that I always thought it a very thin ticularly before Burr's other views were disclosed? It is known that many men of the "The candor discovered in the above-recited letter, (of October 26, 1806,) inspired my confidence, and when he made his second visit to Cincinnati, in No- first talents were deceived by this disguise long vember last, he disclosed his plan fully to my view, after this period. It was urged by many as a as I thought, which added strength to my confidence. substantial ground of defence in favor of Burr, He being about to take leave of me, observed: Mr. during the whole course of his trial at Richmond, Smith, my object in a few months will be disclosed; and many adhered to it, even after the trial was you will not find it dishonorable or inimical to this over. Why is it expected that Mr. Smith partiGovernment. I feel superior to the mean artifices cularly ought not to have been the dupe of this which are ascribed to me; calumniators I do not no- disguise at that particular period? It cannot tice, for as fast as you put one down, another will be because he is known to have reposed a blind rise up. This much I will venture to tell you, if confidence in Burr. It is probable that Burr's It is certainly the cirthere should be war between the United States and knowledge of that circumstance induced him Spain, I shall head a corps of volunteers, and be the to suggest the disguise. first to march into the Mexican provinces; if peace and made him the dupe of the artifice. It may should be preserved, which I do not expect, I shall cumstance which lulled Mr. Smith's suspicions, settle my Washita lands, and make society as pleasant about me as possible. In this Government I be said, and truly said, he ought to have been have been persecuted, shamefully persecuted, and, more guarded; it would certainly have been I am sorry to say, that in it all private confidence better for Mr. S. to have been a better judge of between man and man, seems to be nearly destroyed.' human nature, and his present condition is He showed me a deed for a large tract of land on sufficient evidence of the misfortune of the want Red River, and said, if I would consent to let my of that knowledge, but it is no evidence of a sons go thither, he would provide well for them,' to crime, or of a criminal intent. The only conwhich I gave consent, though I never communicated it clusion I draw from this circumstance is, that to my eldest son until last Saturday, the day on which Mr. Smith furnishes a striking example of a he returned from Marietta, and not till he expressed plain-dealing, unsuspicious man, involved in a disinclination to co-operate with Colonel Burr's irretrievable difficulties from the professions object, till he knew whether it was hostile to the Gov-and flatteries of an artful and designing one. Colonel Barr The next observation made upon this part of ernment of the United States or not, told me, further, that very many of his friends, in different parts of the United States, would remove and the evidence disclosed by Mr. S. is, that he conthat his a knowledge of Burr's illicit views is inferred. settle with him, and that he would be the best neigh-sented to let his sons go with Burr, from which bor this country ever had,' and repeated object was not hostile to the people of the United It certainly would be an incorrect application of States, or dishonorable to himself;' and, further, the rules of evidence to infer an object different that, in a few months, many of his enemies would from the one disclosed by the evidence, particularly when the one expressed is much more be proud to call him their friend."" SENATE.] Case of John Smith. [APRIL, 1808. At that time he communicates to the Secretary of War all the communications made by Burr to him at any previous time, confirmed in every respect by the evidence of General Gano. I believe he did it with candor, and then he makes the following natural and correct observations, after having stated that Burr had deceived him with his apparent candor, that he had before believed Burr's views to be honorable; he remarks: "From the proclamation of the President, I am induced to believe that he is possessed of much more information than has come under my notice, and therefore the utmost at tention will be paid to it, as the people here are universally (almost) well disposed to the Government, &c." natural and probable than the one inferred. Mr. | after the receipt of the President's proclamation. Smith himself furnishes both the fact and the object. He says he was induced to consent to his sons going with Burr, from Burr's promises to advance their fortunes by giving them large portions of his Washita lands. Was not this a very natural object? What could be more natural or probable than for a father to be influenced by a motive of advancing his son's fortunes? But it is said this conduct discovered too much confidence in Burr, and too much simplicity in Mr. Smith, there must be therefore some other concealed motive for it. It is admitted that none is proved, and I believe none exists. It is perfectly consistent with all the rest of the evidence. It does demonstrate too much confidence and too much simplicity; but it demonstrates nothing else. It demonstrates no crime. It does not demonstrate any participation in the conspiracy of Aaron Burr. We have now passed through these scenes of inferences and suspicions, and arrived at the 14th of December, 1806. The gentleman from Massachusetts, with his usual candor, here states, that from this time Mr. Smith's conduct became exemplary, from this date every effort on his part was made to defeat the conspiracy; he contributed his full quota of exertion for that purpose, and succeeded. How can this laudable conduct be reconciled with the inferences of guilt made against him? Why, sir, another inference more preposterous than any other, is brought up to support all the former inferences, in my judgment, sufficiently preposterous and improbable in themselves. It is said that this laudable exertion to suppress the conspiracy by Mr. Smith was intended as a cover to his former misconduct. But certainly, sir, before this inference is drawn, the former misconduct ought to be proved. It ought not to be made evidence of the misconduct itself. It certainly cannot be a correct rule of evidence to infer a wrong motive from a right action. But, sir, this inference is made against every rule of probability. It is not probable that if the conspiracy should be suppressed by Mr. Smith's exertions in common with others, that such suppression would cover his own misconduct. It would have been the most effectual mode of detecting and exposing it. What hope could Mr. Smith have indulged, that if he had been engaged in the conspiracy, and had turned traitor to the rest by exerting himself in its suppression, that he would have been exempted from exposure? Would not such conduct have tended to excite the resentment of the other conspirators against him, and to call forth from them every exertion to expose him? This conduct was placing them at defiance, and in my Judgment, is one of the strongest circumstances of his innocence. It was not at all calculated to cover his participation, and it appears to me absurd to conclude that it was resorted to for that purpose. But, sir, look at Mr. Smith's disclosure to the Secretary of War at this period. At this time could he not have anticipated any prosecution against himself. It was the day Upon the supposition that Mr. Smith is innocent, this conduct is natural and its object obvious. Upon the supposition of his guilt, it is unaccountable, and would have been without a rational object. I cannot, therefore, infer guilt against all the probabilities of innocence. I have now gone through all the evidence which has been deemed by the gentleman from Massachusetts the most material against Mr. Smith. I have omitted many circumstances both in the papers formerly before the Senate, and those now presented by Mr. Smith's counsel, tending further to demonstrate his innocence; to these I merely request the attention and recollection of the Senate. It has not been my object to dilate on them, but merely to state the reasons on my mind why the conviction of Mr. Smith's guilt was not produced on it, which has been on the gentleman's from Massachusetts. This has been done by the best consideration of those parts of the evidence which he so ably and eloquently selected and presented to our view; of course the worst part of the picture has been constantly before us. Upon a candid review of all the circumstances, to what do they amount! To suspicions, and suspicions only-suspicions unnatural and improbable. Has a single act of participation in Burr's conspiracy been proved! Not to my discernment. Has any been sug gested to have been proved? I have heard of none. If any criminal act has been committed, why do not gentlemen tell us what it is-in what it consists ? Why do they not put their finger upon it? I call upon gentlemen, I challenge them to do it. That at least must be done, before I can convict the accused of guilt. Mr. ANDERSON said, when he moved the postponement of this business, the day before yes terday, it was from a desire to collate the testimony; which, having done, he was prepared vote when he first took his seat this morning, and had not intended to have taken any part in the discussion of the subject. But, seeing that almost all the strong points of circumstantial testimony had been either overlooked or not duly appreciated by the gentlemen (Mr. HILLHOUSE and Mr. GILES) who had spoken against the adoption of the resolution, and who had, withal, entered with great warmth into the dis APRIL, 1808.] DEBATES OF CONGRESS. Case of John Smith. cussion, he felt himself bound, as a member of the committee to whom the case of Mr. Smith had been referred, to examine some of the prominent parts of the evidence, and to present it impartially to the view of the Senate. Mr. A. said, in the course of his examination of the evidence, he should not, as the gentleman who preceded him had done, entirely discard the testimony of Elias Glover, but should make that testimony, in its proper place, a part of the groundwork of his observations, and support it by Mr. Smith's own affidavit, and his admission of parts of it in his answer to the committee. Mr. A. said, in order to have a correct view of the case, it would be necessary to recite sundry parts of the testimony-as, by combining and comparing it alone, could the subject be clearly understood--and he would begin with the evidence of Peter Taylor, (as being the first in order,) who states that in the month of October, 1806, he was sent by Mrs. Blannerhasset, to Lexington, after Mr. Blannerhasset, with a letter, to prevent Colonel Burr from coming back with him to the island. That he was ordered to call at Mr. John Smith's. That he called at Mr. Smith's store and asked for him. When he came out, Taylor inquired for Colonel Burr and Blannerhasset. Mr. Smith said he knew nothing of either of them. That he, Taylor, must be mistaken as to the place where he was to inquire. Taylor said he was right. That he was directed to inquire for John Smith, storekeeper, Cincinnati; and asked Mr. Smith if he did not recollect a young man that had come for Colonel Burr's top-coat, (greatcoat,) and informed Mr. Smith he had lived with Mr. BlanHe says that, when nerhasset three years. Mr. Smith heard him talk so, he took him up Wanted to stairs, and asked him the news. know what was passing; what was said about General Wilkinson; and if he, Taylor, would carry a letter from him to Blannerhasset, which he agreed to. Mr. Smith then informed Taylor that he would find Burr and Blannerhasset at the house of a Mr. Jourdan, at Lexington, where he found Mr. Burr, who, among other inquiries, asked what letters he had? Taylor replied he had two; one from Mrs. Blannerhasset, and one from John Smith, of Cincinnati. The letter from John Smith, Mr. Burr allowed, was for him, (it was directed to Blannerhasset,) but on Mr. Burr's opening it, he found it contained a letter for him. Having recited some parts of the testimony of Peter Taylor, I shall proceed to make some observations thereon. And here let me premise, that the general character of Peter Taylor has, heretofore, stood the test of the strictest scrutiny at Richmond; and, on a recent inquiry into his veracity and general character, the counsel of Mr. Smith has found both so well sustained, that they have not, in the course of their arguments, attempted to invalidate it, but have contented themselves with pointing out some small mistakes, that have not, in the least. degree, lessened the validity of his testimony. With this fair character, then, does [SENATE Peter Taylor stand before you, and his testimony SENATE.] Case of John Smith. different construction has, however, been attempted to be given to the contents of this letter, and the answer thereto, by the gentleman from Virginia, (Mr. GILES.) Which will best comport with the whole train of Mr. Smith's conduct in relation to Colonel Burr's plans, the Senate will determine. [APRIL, 1808. his sons were going to Orleans in a few days, and that he had consented that Colonel Burr should there take them into his charge; he having assured him that he, Burr, would provide well for them-he also said that Burr wanted the gunboats he was then building. Mr. S. said he had not been well treated about the I shall now proceed to examine the testimony boats he had before built. Mr. S. in his depoof Elias Glover, and I think I can show that Mr. sition sent to the President, some time after Smith's own affidavit does most fully support the proclamation issued, states that when Burr some of the most material parts of it; and it is made his second visit to Cincinnati, in Novemworthy of remark, that Mr. Smith, in his an- ber, 1806, he disclosed his plan fully to him as swer to the committee, admits more of the facts he thought. Being about to take his leave, he sworn to by Elias Glover, notwithstanding the said, Mr. Smith, my object in a few months will very bad character Mr. Smith gives him, than be known; you will not find it dishonorable or he admits of the facts stated in Peter Taylor's inimical to this Government. Thus much I will deposition, whose character, with all the pains venture to tell you, if there should be a war bethat have been taken to invalidate it, yet re- tween the United States and Spain, I shall head mains untarnished. For this extraordinary pro- a corps of volunteers, and be the first to march cedure it may be necessary to account. With into the Mexican provinces. In this statement respect to Peter Taylor, it will be recollected, of Mr. Smith, he fully confirms the deposition Mr. Smith had never admitted the material of Glover; and he also admits that he agreed to parts of the conversation as stated by Taylor to let his sons go with Colonel Burr. This is anhave taken place. That Taylor's weight of tes- other very important point, which goes to suptimony of course depended on his own charac- port the testimony of Glover. For how could ter, and Mr. Smith in his affidavit presented to Glover have known this fact, but from Mr. the Senate, says, that he can prove the falsehood Smith himself-for Mr. S. seems to have been of the statement of this witness. Thus was so cautious about communicating it, that from this man's testimony to be positively disproved, his own affidavit, made the 6th January, 1807, which however has failed. But Glover's could he swears that he never communicated it to his not be completely prostrated in the same way, eldest son until the Saturday preceding the 6th because Mr. Smith had on his oath admitted January. There is one point of some imporsundry of the facts stated by Glover, and that tance, which Mr. S. though virtually, does not at a time when Mr. Smith hardly calculated absolutely deny, but evidently intends to deny upon being arraigned before the Senate under it in his answer to the committee. It is that the present charge. It therefore became neces- part of Glover's testimony respecting the gunsary that Glover's general character should be boats, which is supported by the letter of the so completely destroyed by positive swearing, Accountant of the Navy in answer to one from as to disprove, if possible, even the very facts the chairman of the committee. The accountwhich are fully corroborated by Mr. Smith's ant says, that Mr. Smith had previous to Noown admission on oath. But, Mr. President, vember, 1806, built two gunboats for the United when I look around, and observe that many of States, and that from some change in the plan, this body, either on the bench or at the bar, there arose a difficulty in fixing a proper valua have been much accustomed to compare positive ation. Glover says Mr. Smith told him he had swearing with strong circumstantial testimony, not been well treated about them at Washington. I have not a doubt, but that each of those dif- I would ask how could Glover ever have known ferent kinds of evidence will be duly and delib- that there had been the smallest difficulty about erately estimated. I will now proceed to state Mr. Smith's gunboats which he built for Govsome of the material parts of Elias Glover's tes-ernment, if Mr. S. himself had not communitimony, and will afterwards compare those parts with Mr. Smith's own affidavit. In Glover's deposition, he states that on the 23d November he, in company with a friend, (this friend appears to be William McFarland,) went to Mr. Smith's, and had a conversation with him, in which Mr. S. stated that Mr. Burr had disclosed to him his object, which he had never fully done before-which was, in the first place, should a war take place between the United States and Spain, to head a corps of volunteers, and march into the Mexican provinces; a great number of enterprising young men were engaged for that purpose that his preparations on the western waters were extensive-that the plan had been long maturing, and expressed a full confidence in Colonel Burr's success. Mr. Smith said that cated it. There is no great criminality in this communication, but it certainly tends to prove substantially the conversation between Mr. Glover and Mr. Smith. Thus, I conceive, have several important and material parts of the testimony of Elias Glover been supported, and so far as circumstantial testimony can tend to establish facts, is the deposition of Glover entitled to credit. It has been attempted to be shown, that Glover was a bitter enemy of Mr. Smith, and affidavits to that effect have been produced, from which it is inferred that no kind of communication whatever could, or had, taken place between them. In the deposition of General Gano, it is stated that, in the summer of 1806, Mr. Glover did, in an electioneering conversation, APRIL, 1808.] Case of John Smith. [SENATE. make use of harsh epithets respecting Mr. Smith. | until he saw the President's proclamation. But from the deposition of Mr. Carr, at whose Until then he believed, as we had been in exhouse Mr. Glover boarded, it appears that Mr. pectation of a war with Spain, that if Colonel S. did visit Mr. G. at his lodgings, and that he Burr was engaged in any enterprise, it was under saw them engaged in private conversation in the protection, and with the advice of our Govthe fall of 1806. ernment. About the same time, Mr. Smith makes a similar communication to Mr. Gano, who inquired of him if he was acquainted with Burr's designs and mysterious movements in the Western country. Mr. Smith said he had endeavored to find out, but could not, further than they were honorable, and would be approved by the United States; that he was going to settle his Washita lands, and would, if a war should take place between Spain and the United States, be ready to embark in it, and that many who were now his enemies, would then be glad to call him their friend. Major Riddle states that he had the command of the militia that were called out to stop Burr's boats; that he was stationed near Mr. Smith's house, and had instructions from his superior officer to try to find out whether Mr. S. knew any thing of Burr's affairs, and what he knew; and that, in one of the conversations had with him, Mr. S. said he knew more of Burr's concerns than any man in the State of Ohio, but one. Those various declarations thus made by Mr. S. at several different times, and under different circumstances, appear to be entirely inconsistent with one another. We see by the testimony of Jourdan and Kelly, that Mr. Smith declared that he knew nothing about Mr. Burr's business, and nothing that could criminate or exculpate him. We have seen what Glover stated of what Mr. Smith communicated to him; we have seen that statement confirmed by Mr. Smith's own affidavit, sent to the President; and we now see what Mr. S. has declared to Mr. Token and Mr. Gano; to the former he says, that if Burr was engaged in any enterprise, it was under the protection, and with the advice, of our Government; this was the very language Mr. Burr himself held out to induce the unwary and unsuspecting to join him. To Mr. Gano, Mr. Smith says, he had endeavored to find out Burr's plans, but could not, further than that they were honorable, and would be approved by the United States; and to Major Riddle he says, he knew more of Burr's plans than any man in the State of Ohio, but one. These three last conversations took place about ten days after Mr. Smith had declared to Jourdan and Kelly, that he knew nothing of Burr's business, or any thing that could criminate or exculpate him. How are these various declarations of Mr. S. to be reconciled? At one time he says he knows nothing of Burr's affairs; ten days after, he says he knew more of his concerns than any man in the State of Ohio, but one; and goes so far as to say, that if Burr was engaged in any enterprise, it was under the protection, and with the advice, of our Government; and all this after Mr. Burr had told him that he had been persecuted in this Government, shamefully persecuted, and that, in it, all private con Mr. Dugan, who is stated to be a merchant at Cincinnati, deposeth that he boarded in the same house with Mr. Glover, in the fall of 1806; that he has seen Mr. Smith going to Glover's lodgings, at the dusk of the evening, and that Mrs. Carr, the landlady, frequently expressed herself in the following terms: "I wonder what brings Mr. Smith so often to this house after dark, and causes him to stay so long in Mr. Glover's room?" or words to that effect. Now, if we believe these witnesses, and we have no reason to doubt their veracity, there certainly must have been a very good and intimate understanding between Mr. Smith and Mr. Glover in the fall of 1806, and this will account for Mr. Smith's free communication to Mr. Glover; and the deposition of William McFarland proves the conversation between Mr. S. and Mr. G. to | be substantially correct; and as Mr. Smith has fully proved that Glover and McFarland were both concerned in Burr's plans, it will remain with the Senate to say whether it has not also been proved that Mr. Smith was likewise concerned. I shall take a very short view of Mr. Smith's journey to Frankfort, at the time he saw Col. Burr there, shortly after the conversation which has been stated to have taken place at Mr. Smith's own house, with Glover and McFarland. Some business led Mr. S. to Lexington, where he was informed by a Mr. Jourdan, that if it was known he (Smith) was there, he would be summoned as a witness against Colonel Burr, who it was said was at that time arraigned at Frankfort. Mr. S. said that he was willing, and that he knew nothing of the busiA similar conversation passed between Mr. S. and a Mr. Kelly, by which it appears that Mr. Smith did go to Frankfort on his own busi- | ness; that for want of General Adair, Mr. Burr's trial before the grand jury was delayed; but Mr. Smith said he could not be detained at Frankfort from his business, particularly as he knew nothing that would either criminate or exculpate Colonel Burr. Thus we see Mr. Smith denying any knowledge whatever of Col. Burr's plans, although he had acknowledged that Colonel Burr had disclosed his views to him; and the charge then against Colonel Burr was, an intention to invade the Spanish provinces. Mr. Smith's testimony, had it been given, would certainly have thrown much light on the subject, and might have put a complete stop to all the future consequences which created so much agitation throughout every part of the continent. ness. In about ten days after this affair happened, on the evening of the sixteenth December, Mr. Smith told Mr. Token, as appears by his deposition, that he never believed Colonel Burr to be engaged in hostility against the United States, |