The national intelligencer and Washington advertiser. (Washington City [D.C.]), 1808-01-15 00:00:00

National Intelligencer.
WASHINGTON ADVERTISER.
VOL. VIII.
WASHINGTON CITY, PRINTED BY SAMUEL HARRISON SMITH, PENNSYLVANIA AVENUE.
NO. 1152
FIVE DOLLARS PER ANNUM,
FRIDAY, JANUARY 15, 1808.
PAID IN ADVANCE.
CONGRESS.
HOUSE OF REPRESENTATIVES.
DEBATE.
On the Resolution for requesting the President to cause an enquiry to be made into the conduct of General Wilkinson.
TUESDAY, JANUARY 5, CONTINUED.
Mr. G. W. Campbell rose to answer a question of the gentleman from New York, for what purpose he would send these papers to the Executive! There were very few gentlemen in the House to whom an answer to such a question could be necessary. Was it as evidence that they were to be sent? Mr. C. had stated before and he repeated it now, that it should not be sent as evidence, but as information which would enable the President to procure evidence. The papers read were not evidence. It must be well known to that gentleman who Mr. C. believed was a legal character, that no extracts of letters, memorandums, &c. were evidence; they might however serve as an aid to procure evidence. Gentlemen enquired if he would send a part, why not the whole? Mr. C. would transmit to the proper authority all the information which might be in possession of the House, but would not take any steps for procuring more. It was perfectly within the power of any person to inform any tribunal that certain information was in possession of any member of this House, if it were wished to procure it.
Mr. C. did not agree that a court of enquiry did not possess the power of collecting evidence; he was of opinion that it was competent to call upon any person for information. The only doubt was, what might be the effect of its summons upon a member of this House? The practice in these cases had been for the House to give leave of absence to any member to give evidence when it became necessary on any trial, and the House would not hesitate in this case to give it to the gentleman from Orleans; and leave being given, Mr. C. was convinced that the gentleman would not hesitate to attend and give his evidence. It was not consistent with the principles of justice, that a court martial should not possess power to bring before them persons who possessed information on the subject under their consideration. If a doubt existed whether they could call on any other than military characters, the principle ought to be fixed one way or the other.
The case cited by the gentleman from New York of a Senator, had no relation whatever to the present subject, and was meant merely to shew that the House had the right to clothe a committee with power to send for persons, papers, &c. The distinction which had been before taken, and which still applied was this: that where the House had a right to examine and act on a subject, they might clothe a committee with this power. If the House possessed the right to use the evidence when they got it, he did not doubt their power to send for persons, papers, &c. But if the right to use it were not possessed by the House, the power to obtain it ceased.
It had been stated also by the gentleman that he could not sufficiently express his reprobation of the position taken by some gentlemen, that this House had not authority to direct the President to institute an enquiry. For himself Mr. C. could not account for the opinions the gentleman entertained, or on what ground he could support them; for the gentleman had not designed to examine into minutiae, had told them he could not condescend to reason. Mr. C. conceived the gentleman had evinced by his conduct that the arguments in favor of a doctrine contrary to his own, could not be met by fair argument.
The gentleman from Vermont (Mr. Elliot) had told them because this power was not expressly denied, that the House possessed it. Now Mr. C. conceived that the House had no power except such as were given to it by the constitution, and that when about to act on any case, they should look to that instrument as to a power of attorney from which they derived their authority, and unless they found it there that they ought to stop and proceed no further in the object under their consideration. It was not pretended that this House could impeach a military officer, or that the Executive was bound by the instructions of the House on this subject; it was not a legislative act, nor intended to produce a law. It was in this view that in his opinion the House ought not to stop one of its ways to give directions to any part of the government not immediately under its control.
He could assure that gentleman and all who heard him that no man was more unwilling to obstruct an enquiry into the conduct of the commander in chief of the army, or would go further than himself to promote it. It was wished for strongly in the country which he represented; but he was inclined to believe the object was about to be accomplished by the only proper authority, indeed that it was already in progress. It seemed as if the gentleman
on his right (Mr. Gardener) depended entirely on the resolution for an enquiry: Mr. C. almost doubted his hearing of the gentleman's language, that since a deal ear had been lent to information in the palace, they, the representatives of the nation, ought not to be silent. It was important that facts should be correctly stated and correctly understood. There had not been heard in this House even an insinuation that this transaction had come to the knowledge of the Executive, or that the evidence adduced was known to that department. The contrary was stated; for it had been expressly stated that this evidence had neither been before the grand jury or the court at Richmond. So far then from the Executive having had it in his power to avail himself of this evidence to enquire, it had never been in his possession or before him. Mr. C. had thus stated the manner in which he understood the matter, that false impressions might not go abroad.
Mr. Gardener said he never would for his part consent to the making such a request as that contemplated by the President, except he was well convinced that such an enquiry was necessary: Before, therefore, he would consent to adopt the main resolution, he would wish to put himself in possession of all evidence that was within his reach, to satisfy his own mind that the enquiry was necessary. If it were continued however, that this resolution should not be adopted on the ground that it was not necessary to make such a request, it followed that they must take some course or other to ascertain what was the real ground. How should they proceed in any other way than in that which he had proposed? The gentleman from New Orleans might be called upon to give evidence on this floor; but Mr. G. apprehended that this was not such a body as could properly receive oral evidence. It should be sent to a committee for that purpose, they might receive that evidence in form, it would then answer the best purpose, and would be obtained in the shortest way. It was for this reason that he had added to his motion the power to send for persons, papers, &c.
The gentleman from N. Carolina (Mr. Alston) seemed to apprehend that Mr. G. had mistaken what had fallen from the gentleman from New Orleans on a former day. Mr. G. had stated that the Executive had turned a deaf ear. What did the gentleman from Orleans say? That he had it in his power to give testimony which would implicate gen. W. he did not deny, and what was the reason that he had not given this information to the House? Because he had before made application to the Executive to give information not only with regard to this officer, but to others, and the President had turned a deaf ear to all; not only to this particular point, but to the whole. The gentleman's expression "particularly" did not convey a meaning that this was not among the subjects, but that it was not exclusively the subject of his communication, being included in the rest. Mr. G. so understood him, and the gentleman would correct him if he misunderstood him.
The gentleman from Tennessee (Mr. Campbell) had taken a distinction between evidence and information; the gentleman would send these papers not as evidence but as information. Mr. G. would not enter into a grammatical contest as to the exact definition of the word information. If he would send these papers for informing the Executive (to use his own word) why not send other testimony which was not upon paper? His argument or reasoning, if it amounted to any thing, was equally applicable to one as to the other. As Mr. G. knew that they had means of acquiring more information than they possessed, and that that proposed to be acquired would be more to the point than what they had, he wished to send that also. He was not however tenacious of the particular form of his motion: if gentlemen thought the House should appoint a committee of enquiry in the first instance he was agreed; so that the great object was attained by securing the American nation from the danger of having its forces commanded by officers not worthy of confidence, on the one hand, or of wiping off the stain which had attached to the character of the commander in chief on the other. God knows, said he, that I would rejoice as much as any gentleman on the floor after a proper enquiry to find that this officer did not merit the accusation, and would be the first to retract my opinion on conviction of my error.
The gentleman from Vermont (Mr. Fisk) had asked at what time the character of gen. Wilkinson had been first impeached? Mr. G. was no advocate of Burrism; nor was he one of those opposed to gen. W. for putting down Burrism; for he never had confidence in Burr at any period of his life. Therefore if the gentleman meant to insinuate that he had symptoms of partiality for any other than the good old school, he was greatly deceived. Mr. G. said he was a friend to the government, thought it should not run to Despotism on the one side, or Aristocra-
cy on the other; and also thought when a military commander violated the constitution, it became a duty for the people to raise their voices against it. He had dared to express his opinion because he conceived it to be his duty; and he hoped no member of this House would be deterred from doing his duty by having his name written on every house in the city. He had a confidence in every representative of the people: he looked at the events spoken of by the gentleman from New Jersey as doing honor to the nation, and was happy that a member of this House had not descended so low as to disgrace himself by such a competition, and when the time should arrive that a representative should be deterred from his duty by insult he should feel the character of the House degraded. Upon the whole, if a serious, fair and candid enquiry was intended to be made, he should be content with any mode which might be pointed out.
Mr. Clark said the gentleman from N. Carolina (Mr. Alston) had mistaken him, representing him as having used the word "meant" instead of "attempted." Mr. C. said he had not, in attempting to make these communications, mentioned general Wilkinson's name: nor did he know whose name he had then mentioned. His intention at that time might be known by application to the secretary of state for the letter which Mr. C. had written to him. His information had related to efforts made by the Spanish government to detach the western country from the union. He had various proofs of it: and among others a letter which he now held in his hand in Spanish, a translated extract of which he read. [For this extract see the proceedings of Friday in our last paper.] He had thought it his duty to give this information: he had not been attended to—he presumed not, however, to call the Executive to account for its conduct; as consul he had attempted to make it known, and that attempt was made known further by an application to know if he was understood. [A member asked the date of the letter from which an extract had just been read?] Mr. C. said the letter was dated the 27th April, 1796: the other part of the letter related to matters not relevant to business. It would shew that there had been a delegate sent by certain persons in Kentucky to treat, and this he wished to have made known. [Mr. Chandler asked at what time Mr. C. became possessed of this letter?] He had a knowledge of these circumstances to which the letter alluded, before he came to this part of the country; but he had not the letter in his possession at that time. [Mr. Chandler asked if by "coming to this part of the country" the gentleman meant at the present Congress?] No, said Mr. C. It was the first time I came here in the year 1802.
The yeas and nays being taken on the motion for striking out that part of the motion for commitment of the resolution to a select committee, which gave power to send for persons and papers, it was carried, 72 to 38.
The motion for reference was then lost without a division.
The original resolution now recurring for consideration,
Mr. Dana said the course which appeared most proper to him would be to transmit the information to the President of the U. S. that he might proceed in such a manner as to him might appear correct and most for the public service. Without undertaking to express what was the amount of evidence, without saying whether innocent or guilty, it would be expressing an opinion that this information came from such a source and was of such a nature that it should be attended to. And as they found that there was a gentleman in the House possessed of information, Mr. D. had prepared a form of a resolution for procuring his evidence, which the Speaker could determine to be correct or not.
The SPEAKER said the motion could not be received till the resolution at present under consideration was disposed of.
Mr. Blackledge said, as there was now no information before the House on which they could act, he should oppose the resolution. He had been in favor of a reference in order to obtain that evidence which was necessary for proceeding on the subject. Being now without any evidence which would authorise a resolution, he felt compelled to vote against it.
Mr. G. W. Campbell rose to enquire whether the House were in possession of any documents or not relating to this subject?
The SPEAKER said they were not.
Mr. C. then said that he should vote against the resolution. If they were in possession of the House (and this was sufficient reason for his present vote) he would vote to transmit them to the Executive of the United States.
Mr. Gardner said it had been stated that an enquiry had been instituted; he was willing to believe it;
if such was the case, they might obtain the enquiry without the proposed resolution, but the proceedings of the House would have a bearing on the public mind. Mr. G. was sorry that evidence had been brought forward in this way, and had reduced the House to such a situation, that adopting or rejecting the resolution must convey an expression of their opinion. He was unwilling to vote for a resolution carrying with it such a weight as this resolution must. If the resolution were rejected after evidence had been produced from two different sources, what impression would it convey? If he were to vote for its rejection, he should not give full credit to the evidence, which had made such an impression on his mind, that he felt it his duty to give this information to the suitable authority to make the enquiry; but he was sorry that the question should have been proposed to the House in this manner. He could wish the resolution might be disposed of in some way, and that the measure recommended by the gentleman from Connecticut should be adopted.
Mr. Burwell said before the question was taken upon the resolution he must be permitted to explain his vote. It would be recollected by the House, that he had a few days since declared that he considered it proper that an enquiry should take place into the conduct of the officer implicated, that it was due to General Wilkinson himself, the government, the people, and the army under his command. It was peculiarly important at this time, to understand thoroughly the character and disposition of an officer holding so high a command in the service of the United States; there were then some doubts expressed, as to the form in which the subject was presented, but a vast majority seemed to be favorable to its adoption, for the same reasons which influenced his mind, and which were expressed to the House. He could not tell what had produced a change, and introduced such a diversity, if not a complete revolution, in the opinions of gentlemen; he had paid the closest attention to the discussion, and still thought the House might adopt the resolution, without offering disrespect to the Executive branch of the government, without transcending their constitutional powers, or doing injustice to the person whose conduct was involved. They were now told a court of enquiry had been ordered, and that it was unnecessary to proceed. This Mr. B. said might or might not be the fact; he had no doubt the member who made the declaration had been so informed. But rumor had never been considered sufficient authority to arrest the proceedings of Congress on any subject before them. The deliberations of that body could only be influenced by information laid before them in a manner less susceptible of doubt.
Mr. B. said he wished the House to recollect that they were not sitting in conclave, with closed doors, every thing which passed upon the floor was reported; not an expression or idea but what was known to the people, who would be able to separate that part of the discussion irrelevant to the subject, and appreciate properly that part relative to it. What then was the inference? With this copious stream of light, the true motives of every member would be readily discerned; he felt the fullest confidence in the Executive, and was certain the conscientious discharge of his duty would never be construed into the contrary. Mr. B. said the President would never impute to men who had here and elsewhere uniformly evinced the warmest attachment to their country, and the most liberal support of the administration, dishonorable motives, when others would so readily explain their conduct; for he had too much good sense, and was too well acquainted with the constitutional duties of members in this branch of the government, to imagine any disrespect was intended to him. But said Mr. B. the facts stated by the gentleman himself, who originated this motion, preclude the possibility of this imputation; they expressly tell you the information upon which they are based has never been in the possession of the Executive department; how then could he act on evidence, the existence of which was utterly unknown to him? The gentleman a few days since declared he had only been him-
self in the possession of it two or three days.
[Here Mr. Randolph interrupted Mr. B. and observed some of it had been put into his hands the very morning preceding the motion.]
Mr. B. said it was still more impossible to attach blame. The delegate from Orleans had equally exonerated the President. The intelligence he intended to have imparted, we have been told, did not relate to the subject of the resolution. It was worthy of remark, that at the same time they were informed that a deal ear had been turned to what was attempted to be communicated, the papers containing it were left with the Secretary of State, and lodged in his office; and the presumption is they were properly attended to. Mr. B. called upon gentlemen to bear these things in mind, and not suffer themselves to be driven from the true course by the observations which had fallen from any side. This was his determination, since he neither appropriated the language or participated in the feelings which had been expressed by some members during the debate. Mr. B. said the very act of transmitting the evidence, instead of insinuating any charge, would clearly be an expression of confidence, and certainly a respectful communication of information of information to the Executive, to be properly used, for the public good.
Gentlemen had indulged themselves in insinuations against the commander in chief. Mr. B. would not imitate them. During his remarks he had sedulously avoided expressing any opinion of the merits or demerits of that officer; he would neither prejudge him, or forestall public opinion, by giving utterance to his impressions. He wished to bring every offence to justice, but not to deprive him of the only valuable privilege of the accused, an impartial trial. Mr. B. said, within a few years past, the United States had been menaced by the most serious conspiracies. The nation had been convulsed by a plot, whose machinations were extended and ramified into the remotest corner of the country. The despicable wretches who had reared this detestable fabric, who deserved, and he hoped had received the detestation and execration of every honest man, attacked to his country, and capable of estimating the value of those liberties which were threatened with destruction, had notwithstanding received a fair trial, they had passed through all the process of an investigation, in the slow pace of the common law. He thought it certainly not less just and incumbent to give a fair opportunity to the commander of our army to meet the charges exhibited against him, and to dispel the suspicions which clouded his reputation, by an investigation, if he was really innocent. Mr. B. said he had no hesitation in saying, that the officer in question should invite himself the most thorough examination; this was the only expedient to remove the obloquy under which he labored; & this course ought to be equally desirable to gentlemen, whether friendly or inimical. But said Mr. B. there is a consideration superior to those of a personal nature, the delicate state of our affairs; the possibility of a contest with foreign nations, and the indispensable necessity to give efficacy to our army, and quiet to the nation; whose jealousy was admitted on all sides to be great, and could only be quieted in this manner. A gentleman from New York (Mr. Gardener) had spoken of the conduct at New Orleans, and the violation of the constitution by the commander in chief. Mr. B. said, he certainly condemned, and would readily punish every violation of that instrument by the military; but he would ask gentlemen if they really possessed correct knowledge upon that subject, and suggest the impropriety of pronouncing upon the guilt of a man in a rumor of the most contraband kind. He advised gentlemen to be thoroughly and mutually acquainted with the occurrences in the western country, before they pronounced that Gen. W. had not contributed essentially to the preservation of tranquility in that quarter of the United States. Mr. B. said he thought whenever a member of the House in its place gave information relative to the conduct of a public officer, the House could do nothing less than make a proper disposition of it; and whenever he demanded an

enquiry to be made, that request ought to be granted. It was due to members who believed enquiry necessary. They became themselves responsible for the correctness of their information, and became pledged for the propriety of acting upon it. The House must certainly recollect, a few years since an enquiry was demanded into the official conduct of the Postmaster General, and it was in his opinion very properly granted.
Mr. B. said he should protest against being implicated in all the sentiments which might be expressed by those who intended to vote in the same way he should himself; nor should a fear of that sort ever induce him to abandon the course his judgment approved, and his conscience sanctioned. He thought, however, that the mover of the resolution ought to have laid on the table all the papers which he had read in his place; they might have been examined, and estimated with more correctness by the different members.
(DEFERRAL TO BE CONTINUED.)
WEDNESDAY, JAN. 13.
Mr. Rhea, (T.) moved that the deposition laid on the table by Mr. Clark (N. O.) be printed—Agreed.
Mr. Lewis from the committee to whom the subject was referred, reported a bill authorising the proprietors of squares or lots in the city of Washington, to have them subdivided. Read twice and referred to a committee of the whole.
Mr. Lloyd obtained leave of absence for ten days.
Mr. W. Alston from the committee to whom was referred the message from the President on the subject of the mint, reported a bill further to prolong the continuance of the mint at Philadelphia. Read twice and referred to a committee of the whole.
Mr. Morrow (Ohio) presented a petition from a number of purchasers of public lands, stating that they were not able to pay the proper instalments, and praying indulgence in point of time. Referred to the committee on public lands.
Mr. Parke offered the following resolution, which was adopted, and Messrs. Parke, Bard, Taggart, Gardner and Sawyer, appointed a committee.
Resolved, That a committee be appointed to enquire into the expediency of extending the right of suffrage in the Indiana territory, and that they have leave to report by bill or otherwise.
The bill for continuing the Mediterranean Fund was returned from the Senate, with amendments.
The House took up for consideration the resolution offered by Mr. Rowan on Monday. The amendments made yesterday by Messrs. Rowan and Love being incorporated with it.
Mr. Alston moved to strike out all the resolution after the word "Resolved" except the part relating to the transmission of the evidence to the Executive.
Mr. Rowan withdrew his resolution, that a decision on the principle might not be evaded by the amendment just proposed—and
Mr. Randolph immediately renewed the motion which he originally proposed in the following words:
Resolved, That the President of the United States be requested to cause an enquiry to be instituted into the conduct of Brig. Gen. James Wilkinson, commander in chief of the armies of the United States, in relation to his being, at any time, while in the service of the United States, corruptly received money from the government of Spain, or its agents.
After a debate of three hours, which shall be given hereafter, the question was taken on this resolution by Yeas and Nays, and carried—72 to 49.
Mr. Epps said he had stated on a former day in his place that no information had at any time been received by the present administration which went to charge Brigadier General Wilkinson with being a Spanish pensioner. This statement was made in reply to a gentleman from Kentucky, who thought it unnecessary to forward to the Executive the evidence exhibited against General Wilkinson, on the ground that this evidence was already in possession of the Executive department. A fact so important to the public ought not to rest on the assertion of any individual. If corruption has at any period of our political existence fixed its tongs on this government, if men known to be Spanish pensioners have at any period been honored with confidence by any administration; it is proper the people should understand at what period this confidence commenced, and by whom it was reposed. So far back as the year 1789 or 1790, information was forwarded to the Executive department of this government, that a combination between citizens of the United States, and the Spanish government, had been formed, for the purpose of dismembering the United
States. This information (together with the names of most of the persons concerned in the combination) was forwarded to the first administration formed under this government, at the head of which General Washington was placed. It was known to the second administration under Mr. Adams, and additional information forwarded to him by Mr. Ellicott. If General Wilkinson was originally concerned in this combination, he must have been appointed to office by the first administration under this government, and continued by the second, with a full and complete knowledge of this fact. The present republican party found General Wilkinson in office, and abundant proof can be produced that he possessed the confidence of the two preceding administrations. If he was originally a member of the old Spanish combination, or has at any period prior to the year 1801, been guilty of any act calculated to destroy the public confidence, let the responsibility rest on those who appointed and continued him in office. We have seen in one state of the union a member of this combination removed from the important office of judge, on the ground of being a Spanish pensioner. A charge of the same kind is now made on oath by a member of this House, against an officer of the United States. It is time that all the information possessed by the government of the United States on the subject of this combination, should be brought fairly before the public. With a view to obtain this information, he offered the following resolution:
Resolved, That the President of the United States be requested to lay before the House of Representatives all the information which may at any time from the establishment of the present federal government to the present time, have been forwarded to any department of the government, touching a combination between the agents of any foreign government and citizens of the United States, for dismembering the union, or going to shew that any officer of the United States has at any time corruptly received money from any foreign government or its agents. Distinguishing as far as possible the period at which such information has been forwarded, and by whom.
Mr. Randolph seconded this motion.
After a few objections to this resolution from Mr. Quincy, on account of its being too comprehensive, not giving the President power to withhold confidential correspondence, the question was on motion of Mr. Rhea (T.) taken by Yeas and Nays, and carried unanimously, every member present, to the number of one hundred and twenty, voting in the affirmative.
Mr. Rowan said that although a decision on his resolution had been eluded, out of respect for the opinions of gentlemen who objected to particular parts of it, he had modified it, and offered it as follows:
Resolved, That a special committee be appointed to enquire into the conduct of Brigadier General Wilkinson, in relation to his having at any time whilst in the service of the United States, either as a civil or military officer, been a pensioner of the government of Spain, or corruptly received money from that government, or its agents; and that the said committee have power to send for such persons and papers as may be necessary to assist their enquiries; and that they report the result to this House, to enable this House the better to legislate on subjects of the common weal, and our foreign relations, and particularly our relation with Spain, as well as on the subject of the increase of the army of the United States and its regulations.
A motion to consider this resolution was negatived—60 to 46.
Mr. Holland moved that a committee be appointed to wait upon the President with the resolutions this day adopted.
Mr. Love moved that the evidence or information, laid before the House relative to the conduct of Gen. Wilkinson be transmitted to the Executive.
Mr. Randolph moved an adjournment.—Negatived—Ayes 47—Nays 57.
The House agreeing to consider Mr. Love's motion—Ayes 67.
On motion of Mr. Rowan, seconded by Mr. Randolph, the words "copies of" papers, &c. were inserted; and
The resolution for transmitting copies of the papers was agreed to without a division.
The motion for appointing a committee to wait on the President with these resolutions and copies, was agreed to without a division. Messrs. Randolph and Epps form the committee.
Mr. CLARK'S STATEMENT. In obedience to the direction of the House of Representatives expressed in their resolution of Friday last, I
submit the following statement: I arrived from Europe at New Orleans in December 1786, having been invited to the country by an uncle of considerable wealth and influence, who had been long resident in that city. Shortly after my arrival, I was employed in the office of the Secretary of the government. This office was the depository of all state papers. In 1787 Gen. Wilkinson made his first visit to New Orleans, and was introduced by my uncle to the governor and other officers of the Spanish government.
In the succeeding year, 1788, much sensation was excited by the report of his having entered into some arrangements with the government of Louisiana to separate the western country from the U. States, and this report acquired great credit upon his second visit to New Orleans in 1789. About this time I saw a letter from the Gen. to a person in New Orleans giving an account of Col. Connolly's mission to him from the British government in Canada and of proposals made to him on the part of that government, and mentioning his determination of adhering to his connexion with the Spaniards.
My intimacy with the officers of the Spanish government, and my access to official information disclosed to me shortly afterwards some of the plans the general had proposed to the government for effecting the contemplated separation. The general project was, the severance of the western country from the U. States, and the establishment of a separate government in the alliance and under the protection of Spain. In effecting this, Spain was to furnish money and arms, and the minds of the western people were to be seduced and brought over to the project by liberal advantages resulting from it, to be held out by Spain. The trade of the Mississippi was to be rendered free, the port of New Orleans to be opened to them, and a free commerce allowed in the productions of the new government with Spain and her West-India islands.
I remember about the same time to have seen a list of names of citizens of the western country which was in the hand writing of the General, who were recommended for pensions, and the sums were stated proper to be paid to each, and I then distinctly understood that he and others were actually pensioners of the Spanish government.
I had no personal knowledge of money being paid to General Wilkinson or to any agent for him on account of his pension previously to the year 1793 or 1794. In one of these years, and in which I cannot be certain until I can consult my books, a Mr. La Cassagne, who I understood was post-master at the falls of Ohio, came to New Orleans, and as one of the association with General Wilkinson in the project of dismemberment, received a sum of money, four thousand dollars of which or thereabout, were embarked by a special permission free of duty on board a vessel which had been consigned to me, and which sailed for Philadelphia, in which vessel Mr. La Cassagne went passenger. At and prior to this period I had various opportunities of seeing the projects submitted to the Spanish government, and of learning many of the details from the agents employed to carry them into execution.
In 1794, two gentlemen of the names of Owens and Collins, friends and agents of General Wilkinson, came to New Orleans. To the first was entrusted, as I was particularly informed by the officers of the Spanish government, the sum of six thousand dollars to be delivered to General Wilkinson on account of his own pension, and that of others. On his way, in returning to Kentucky Owens was murdered by his boat's crew, and the money it was understood was made away with by them: This occurrence occasioned a considerable noise in Kentucky, and contributed with Mr. Power's visits at a subsequent period, to awaken the suspicion of General Wayne, who took measures to intercept the correspondence of General Wilkinson with the Spanish government, which were not attended with success.
Collins, the co-agent with Owens, first attempted to fit out a small vessel in the port of New Orleans, in order to proceed to some port in the Atlantic states; but she was destroyed by the hurricane of the month of August of 1794. He then fitted out a small vessel in the Bayou St. John, and shipped in her at least eleven thousand dollars which he took round to Charleston.
This shipment was made under such peculiar circumstances, that it became known to many, and the destination of it was afterwards fully disclosed to me by the officers of the Spanish government, by Collins, and by Gen. Wilkinson himself, who complained that Collins instead of sending him the money on his arrival had employed it in some wild speculations to the West-Indies, by which he had lost a considerable sum, and that in
consequence of the mismanagement of his agents he had derived but little advantage from the money paid on his account by the Spanish government.
Mr. Power was a Spanish subject, resident in Louisiana, and the object of his visits to the western country became known to me in 1796, when he embarked on board the brig Gayoso at New Orleans for Philadelphia in company with Judge Sebastian, in which vessel as she had been consigned to myself, I saw embarked under a special permission four thousand dollars or thereabout, which, I was informed, were for Sebastian's own account, as one of those concerned in the scheme of dismemberment of the Western country.
Mr. Power, as he afterwards informed me, on his tour through the western country, saw General Wilkinson at Greenville, and was the bearer of a letter to him for the Secretary of the government of Louisiana, dated the 7th or 8th March, 1796, advising that a sum of money had been sent to Don Thomas Portell, commandant of New Madrid, to be delivered to his order. This money Mr. Power delivered to Mr. Nolan, by Wilkinson's directions. What concerned Mr. Nolan's agency in this business I learned from himself, when he afterwards visited New Orleans.
In 1797, Power was entrusted with another mission to Kentucky, and had directions to propose certain plans to effect the separation of the western country from the U. States. These plans were proposed and rejected, as often solemnly assured me, through the means of a Mr. George Nicholas, to whom among others they were communicated, who spurned the idea of receiving foreign money. Power then proceeded to Detroit to see Gen. Wilkinson, and was sent back by him under guard to New Madrid from whence he returned to New Orleans. Power's secret instructions were known to me afterwards, and I am enabled to state that the plan then contemplated entirely failed.
At the periods spoken of, and for some time afterwards I was resident in the Spanish territory, subject to the Spanish laws, and without an expectation of becoming a citizen of the U. States. My obligations were then to conceal and not to communicate to the government of the United States, the projects and enterprizes which I have mentioned of General Wilkinson and the Spanish government.
In the month of October of 1798, I visited General Wilkinson by his particular request at his camp at Loftus's heights, where he had shortly before arrived. The General had heard of remarks made by me on the subject of his pension, which had rendered him uneasy, and he was desirous of making some arrangements with me on the subject. I passed three days and nights in the General's tent. The chief subjects of our conversation were the views and enterprizes of the Spanish government in relation to the U. States, and speculations as to the result of political affairs. In the course of our conversation he stated that there was still a balance often thousand dollars due him by the Spanish government, for which he would gladly take in exchange Governor Gayoso's plantation near the Natchez, who might reimburse himself from the treasury at New Orleans. I asked the General whether this sum was due on the old business of the pension—he replied that it was, and intimated a wish that I should propose to Governor Gayoso a transfer of his plantation for the money due him from the Spanish treasury. The whole affair had always been odious to me, and I declined any agency in it. I acknowledged to him that I had often spoken freely and publicly of his Spanish pension, but told him I had communicated nothing to his government on the subject. I advised him to drop his Spanish connexion. He justified it heretofore from the peculiar situation of Kentucky, the disadvantages that country laboured under at the period when he formed his connexion with the Spaniards, the doubtful and distracted state of the Union at that time, which he represented as bound together by nothing better than a rope of sand, and he assured me solemnly that he had terminated his connexions with the Spanish government, and that they never should be renewed. I gave the General to understand that as the affair stood I should not in future say any thing about it. From that period until the present I have heard one report only of the former connexion being renewed, and that was in 1804, shortly after the General's departure from New Orleans. I had been absent for two or three months and returned to the city not long after General Wilkinson sailed from it. I was informed by the late mayor, that reports had reached the ears of the governor of a sum of ten thousand dollars having been received by the General, of the Spanish government while he was one of the commissioners for taking possession of Louisiana. He wished
me to enquire into the truth of them, which I agreed to do, on condition that I might be permitted to communicate the suspicion to the general, if the fact alleged against him could not be better verified. This was assented to. I made the enquiry and satisfied myself by an inspection of the Treasury book for 1804, that the ten thousand dollars had not been paid. I then communicated the circumstance to a friend of the General, Mr. Evan Jones, with a request that he would inform him of it. The report was revived at the last session of Congress by a letter from Col. Ferdinand Clairborne of Natchez to the delegate of the Mississippi territory. A member of the House informed me that the money in question was acknowledged by Gen. Smith to have been received at the time mentioned, but that it was in payment for tobacco. I knew that no tobacco had been delivered and waited on Gen. Smith for information as to the receipt of the money, who disavowed all knowledge of it, and I took the opportunity of assuring him and as many others as mentioned the subject, that I believed it to be false, and gave them my reasons for the opinion.
This summary necessarily omits many details tending to corroborate and illustrate the facts and opinions I have stated. No allusion has been had to the public explanations of the transaction referred to, made by Gen. Wilkinson and his friends. So far as they are resolved into commercial enterprizes and speculations, I had the best opportunity of being acquainted with them, as I was during the time referred to, the agent of the House who were consignees of the general at New Orleans, and who had an interest in his shipments, and whose books are in my possession.
Washington City, 11th January, 1808. DANIEL CLARK.
District of Columbia, to wit: January 11, 1808. Personally appeared before me, William Cranch, chief judge of the Circuit Court of the District of Columbia, Daniel Clark, Esq. who being solemnly sworn on the Holy Evangelists of Almighty God, doth depose and say, that the foregoing statement made by him under the order of the House of Representatives, so far as regards matters of his own knowledge, is true, and so far as regards the matters whereof he was informed by others he believes to be true. Sworn before me, W. CRANCH.
FRESH RAISINS, TEAS, &c. Now landing from on board the schooner CITIZEN, Capt. Sturges from New York, and for sale by W. & C. SMITH. 50 boxes fresh Muscatel raisins, 30 chests choice hyson, young hyson, hyson skin and imperial teas, 10 quarter casks Lisbon wine, 11 boxes Prussian fig blue. Also just received, 10 puncheons well flavored Antigua rum, 10 pipes cognac brandy, 4th proof, and a small supply of excellent fresh nutmegs. Georgetown, Jan. 13.—wtf
PUBLIC SALE. BY virtue of a decree of the honorable the High Court of Chancery of Maryland, the subscriber will sell at public sale on the premises on Monday the 22d day of February next. All the real estate of Dr. William Lansdale, deceased, lying and being in Saint Mary's county, consisting of the following tracts of land, to wit: "The Ramble," "Hanshaw," and "The Spring," adjoining each other and containing about 1000 acres. The above estate is situated in a healthy genteel neighborhood about two miles from Leonard town. The improvement consists of a large and convenient Brick Dwelling House, four rooms below and four above stairs, with a Kitchen adjoining, meat house, stables, corn house and granary, and a young thriving orchard. The dwelling house stands on an eminence commanding a view of the whole of the flat land of said estate, which is esteemed to be of the first quality in the county, and is adapted to the cultivation of tobacco, corn, small grain, and clover, and is deemed the finest grazing land in the county—a few acres of said land are now in grass and much more may be easily laid down; there is a fine stream of water which runs through this estate, on which has been heretofore a valuable mill. A further description is unnecessary. Persons inclined to purchase, will be shown the premises and the title papers and decrees, on application to the subscriber at the county court office, in Leonard town. This property will be sold entire or in such parcels as may be deemed advantageous, after an actual survey, a plot of which will be shown before and at the day of sale. The terms of sale are that the purchaser of the whole or any part thereof shall give bond with approved security for the paying the purchase money with interest, within twelve months from the day of sale. These persons having claims against the said deceased are hereby requested to exhibit the same with the vouchers thereof to the subscriber on or before the 22d day of August next. JOSEPH HARRIS, Trustee. Leonard Town, Jan. 13.—wtf

We have at length the pleasure of announcing the arrival of Mr. ROSE in this city. After the cloud of ephemeral reports which has so long obscured the public vision with regard to the sources of embarrassment as well as actual situation of this gentleman, his certain arrival at the seat of government may be properly considered as a cause of felicity. We understand that the instructions sent by our government to the Collector at Norfolk, were considered by Mr. Rose as perfectly satisfactory, and that on the 9th inst. he took passage in a packet for this place. On Wednesday, in consequence of the accidental detention of this vessel below Mount Vernon, a barge was dispatched for him from the Navy Yard, (in virtue, we presume, of directions from the Navy Department): in which he reached the Navy Yard on the ensuing night. We venture, confidently, to say that every facility, towards his prompt reception, in the power of the Executive, has been rendered.
Extract of a letter from a gentleman at Chillicothe to Mr. Tiffin dated Jan. 3, 1808
"To-morrow the Circuit Court of the United States commences at this place. The Judges have arrived, but Burr and Blennerhassett have not, the general opinion is that they will not make their appearance, the town is full of strangers, many of the members of the General Assembly have gone to private lodgings and the citizens have exerted themselves to make them all as comfortable as possible.
Extract of a letter from Chicago, dated Nov. 23, 1807.
"We learn that the British government of Canada are making every preparation for a war with the United States, that is practicable; they are using all the influence that money and language will have with the Indians, to excite them to hostilities with the U. States; and I am confident they have so far accomplished their object, that if there be a war with Britain, we shall have almost all the Indians of this western world to contend with. They have sent belts and speeches to all the nations and tribes of Indians east of the Mississippi and north of the Ohio, requiring them all to come and see their father the governor of Canada, saying that he has many things of great importance to say to them; that they expect a war with the U. S. and the Indians must all join them; that it is expected they will have to wade up to their knees in blood, and that their great father the King will give them every thing they will require for their services, &c.
"We have now upwards of 1000 strange Indians within 30 miles of this place, exclusive of those belonging here; they pretend that they have come to this quarter for the purpose of hunting, which is a fallacious account indeed; as there are no good hunting grounds of consequence more than what is occupied by the native Indians. Many of them are from Lake Superior, and others from the Mississippi, &c.
"What can be their object time only will determine."
Extract of a letter from an intelligent person residing among the Indians, near Fort Wayne, in the Indiana Territory, dated 5th December, 1807.
"This is to inform you that speeches from the British agents at Malden, are, at this time, passing through this country, informing the Indians, that their Father, King George, had sent seven large vessels to America, loaded with soldiers, to relieve his Red Children from oppression, and restore their country to them again; and inviting them to repair to Malden as soon as possible."
An extract of another letter from a person residing on the borders of Lake Michigan, on whose information confidence may be placed, dated Dec. 3, 1807.
"I hold it my duty to present you my opinion respecting the Indian, called the Prophet, he assured that he is immediately under British influence, and exercising his arts to induce a war against the U. States. How far he will be able to effect the object I am not prepared to determine. The British agent no longer covers his intercourse with the Indians with the common veil of decency; but with exaggerated accounts of the arrival of British forces inviting them from all quarters to war against America."
Having been engaged, on Wednesday, at the Court of Enquiry until some time after the Senate took up the report in the case of Mr. Smith, we are only able to present a general view of their proceedings on that day. The business, we understand, was opened by the Vice-President informing Mr. Smith that this was the day assigned for hearing him by counsel, and desiring him to name his counsel;
on which he named Francis S. Key and Luther Martin. It was then moved that the sense of the Senate be taken on permitting Mr. Smith to be heard by the counsel thus named distinctly. With regard to Mr. Key there was no objection or division; on admitting Mr. Smith to be heard by Mr. Martin, the Senate divided, and seventeen members, a majority of those present, rising in the negative, permission was consequently refused. Mr. Key thereupon appeared as counsel for Mr. Smith.
Mr. Smith then stated that he had an application to make by his counsel; on which Mr. Key rose, and after a few preliminary remarks read an affidavit signed by Mr. Smith, expressing his confidence in being able to invalidate the prominent allegations against him, as exhibited in the report before the Senate, and specifically stating the names of persons who could disprove the charges.
Mr. Key, on this affidavit, made an application for allowing Mr. Smith a reasonable time and the proper means for obtaining testimony.
Some progress had been made in the discussion of this application before we entered the Senate chamber. The argument, which subsequently ensued (as well as that, as we are informed, which preceded) was of a desultory character, and by no means sufficiently interesting to give in much detail.
Those who advocated an allowance of the application contended that on a motion of expulsion the accused member ought to enjoy the privilege of vindicating himself by having extended to him the means of obtaining proper testimony; and that although a considerable delay might arise from the exercise of this privilege, yet he had a right to demand it, such delay being a much lesser evil than that of condemning a man of high standing unheard; that to come to a decision without the allowance of this right was virtually to condemn him without a hearing; that the application in its present general shape, was the most correct that could be made, as, after agreeing to it, the Senate would be at liberty to fix the time proper to be given, and determine the requisite means for obtaining testimony. They further contended that the Senate possessed the power of enforcing the attendance of witnesses, as incidental to several important powers vested in them by the constitution, without which authority those powers would be idle and altogether inoperative; that in the present instance, however, it might not, perhaps, be necessary to coerce the attendance of witnesses, as it might be agreed to take depositions.
On the other hand, it was said that the application was couched in terms which were too vague and general; it was not denied that a reasonable time and the proper means should be allowed to the accused to make a defence, but it was contended that it became the Senate in the first instance to fix the time and means, instead of adopting an abstract proposition which might by future misconstruction be productive of great & injurious delay. The right of an accused Senator to all the forms and principles of judicial trial was strenuously denied; and it was insisted that the Senate did not, in such a case, either possess the power of coercing the attendance of witnesses, or of compensating them for their attendance; that in this case such an attempt would be in the highest degree injurious, if not impracticable, as a great number of public men in remote parts of the union were named either as witnesses, or as implicated in the conspiracy.
Of those who, we heard speak, Messrs. Bayard & Hillhouse expressed the former, and Messrs. Giles, Adams & Anderson the latter opinions. Neither of these gentlemen, however, took the whole ground ascribed to them collectively.
About 3 o'clock a motion was made to postpone the further consideration of the application, and carried without opposition.
It was then determined to print the affidavit of Mr. Smith, & the second report of the Select Committee, the substance of which we have heretofore stated.
Yesterday the Senate were engaged until a late hour on the case of Mr. Smith. After a wide debate on a variety of propositions relative to the time proper to be allowed to Mr. Smith to make his defence, and the species of testimony proper to be admitted, and the means of producing it, the various resolutions, with the affidavit of Mr. Smith, were, without a division, referred to a select committee, composed of Messrs. Anderson, Giles, Adams, Crawford, and Bayard. We shall in a future paper give a sketch of the arguments.
COURT OF INQUIRY in the case of GEN. WILKINSON.
On Wednesday, a little before noon, the court was opened; when the Judge advocate said, that having a motion to make which required deliberation, he would move that the court should be cleared. The court was accordingly cleared and remained
cleared for near an hour. On the doors being opened, the Judge advocate read the following decision of the Court:
Perceiving the Editor of a public New-paper in the act of taking notes, it was thought proper to consider whether the daily publication of the proceedings was, or was not, consistent with the rules which the impartial administration of justice renders indispensable.
The rule in all military courts respecting evidence is, that in order effectually to guard and preserve its purity, no person cited to appear as a witness shall be allowed to be present during the examination of any of the previous witnesses.
It would a species of subornation and afford a valid objection to testimony, if a witness by hearing all that had been previously testified, should model his evidence by that of the witnesses before examined; [see Tyler p. 130.] yet who can say that this previous testimony would not influence even well intentioned witnesses? and it would certainly give consistency and uniformity to any combination that impure witnesses might make, either to persecute an accused person, or save a criminal.
By the Constitution of the U. S. no man can be convicted of treason without two witnesses to each overt act; the probable intention of this was to prevent combination, for by examining two witnesses to each overt act separately and apart from each other, a combination would be detected; but if a transcript of the previous testimony were put into the hands of a succeeding witness, this wise provision in the Constitution would be rendered nugatory, and the injury done to the administration of justice would be the same, whether the effect were in the nature of mercy or cruelty.
It might be said that in crowded courts of justice persons cited to be witnesses are generally present when previous witnesses are examined; but to say nothing of the nature of the case where owing to a numerous audience, the court cannot tell who are present, there is a wide difference between what may be retained in the memory by hearing what is delivered, and having a fair copy which might be learned by heart; indeed the chance of inaccuracy in remembering oral testimony is so great, that the discovery of a combination is not merely probable but almost certain by the confusion such witnesses would be liable to.
Military courts generally sit in garrisons or camps, and naval ones always sit on board of ships; under these circumstances persons cited to be witnesses are always kept out of court while previous witnesses are under examination; and where the audience happens to be numerous or from any other cause there is a possibility of such evidences being accidentally present, the Judge Advocate expressly gives public warning for them to retire.
No witness is allowed to read his testimony, and so cautious are courts, and so anxious to guard against subornation that preliminary questions, whether the witness has been instructed what to say, are sometimes put: all a witness can be allowed is to recur to notes in cases where detail as to dates, and such like minutiae, are necessary to establish a fact with accuracy.
A court of enquiry is in its nature a preliminary court, and may be succeeded by a court of judgement. It therefore has no power to inflict punishment, nor even to give opinion as to the guilt or innocence of the accused; unless specially required so to do. If therefore the defendant now before this court were to be hereafter brought before a court martial, the publicity of the testimony would be a violation of the fundamental principles of justice, which (as far as human nature is capable) requires that the mind of the Judges should be uninfluenced by any previous information on the subject:—The publication of matters within the jurisdiction & in possession of a court is esteemed a contempt, and attachments have been issued on the publishers who being brought before the court have been sentenced to imprisonment.
From the foregoing it is clear that no person not a member of the court, except the prosecutor and the defendant, can be allowed to take notes of the testimony; but it may be asked why not publish the proceeding daily under the restriction not to note the testimony.
In answer to this it may be asked how is such a restriction to be carried into effect? Once admit the writer and the power is in his own hands. But how could the best intentioned writer avoid running into the testimony in detailing the proceedings, which are made up of testimony, observations upon it, questions arising out of it, and decisions which would convey no idea if unaccompanied by it. What then is the reporter to publish? The mere ordinary forms usual in all courts? This would not be considered by the public as worth the reading; it might indeed excite curiosity but could never satisfy it.
Besides the foregoing reasons the court are uninformed of any precedent in this or any other country where the proceedings of a court of enquiry were published before they were concluded and submitted to the authority by which the court was constituted.
The Court have therefore decided that no person, except he be either a prosecutor or defendant, can be permitted to take notes at any of its sittings.
NOTE.—This decision arose from the Editor of the National Intelligencer having attended the sittings of the Court, with the view of taking down their proceedings and publishing them.
The court then adjourned to Friday at 10 A. M.
We understand that Messrs. John Randolph, Daniel Clarke, and John Rowan, have been notified to attend as witnesses.
DEBATE in the SENATE of the UNITED STATES on the report relative to the expulsion of JOHN SMITH.
THURSDAY, JAN. 7.
Conformably to a previous order of the Senate, the report of the select committee was read—Mr. Smith being at this time in his seat.
Mr. Adams observed that on Monday a letter had been received from Mr. Smith addressed to the Senate, which had been then read, and on which it was perhaps proper that some order should be taken before the report was acted upon. Several requests were made on which some determination ought to be previously had.
[Mr. Adams here read the letter.]
Mr. A. proceeded by observing that the letter represented that all the evidence adduced by the committee, excepting the two bills of indictment, was either taken ex parte, or without allowing Mr. S. a sufficient time to interrogate the witnesses; that it asked for the aid of counsel; for time; and for the means of adducing proof in his defence. It represented that a more summary procedure was recommended in the report. It admitted that there was no necessity of a legal conviction previous to the expulsion of a member of the Senate: but contended that proof of the facts charged must be first established in a legal way; and that the Senate could then only exercise this constitutional right of expulsion.
Mr. A. observed that the letter contained two distinct requests; one to be heard by counsel, the other, to have an opportunity of a trial under the same rules of evidence as prevail in judicial tribunals.
Mr. JOHN SMITH rose, and said he would submit the requests he had to make in the form of a motion; which he accordingly did in the following terms.
That John Smith be informed specifically of the charges against him; that he be allowed to make a defence against such charges, and have process to compel the attendance of witnesses, and the privilege of being heard by counsel.
The Vice President enquired whether this motion were seconded. After pausing for a reply he said he should, without a second, consider it as an application of Mr. Smith to the Senate.
Mr. ANDERSON intimated an opinion that it would be best to consider the requests distinctly.
The Vice President having read the first request—
Mr. ADAMS said he had been looking for precedents that bore on this case. With regard to the first and second requests, he was of the opinion that it was neither consistent with the powers of the Senate, or proper to grant them. With regard to the third request there was a precedent in favor of allowing counsel on one point, viz—to shew cause why the report of the committee should not be adopted. [Mr. A. here cited the case of Wm. Blount to this effect.] To the last request, therefore, he had no objection. To the two other requests he had an objection. He considered it neither necessary or proper that the specific charges should in such a case be made out. 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 witness 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 must necessarily be so on a 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 witnesses 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 shew that proceedings of this kind must be summary, and, consequently, were not in the least analogous to the rules of courts.
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?
The report also stated that in that case a comparison of hands had been admitted as evidence, which would not have been admissible in a court of law. A witness would be allowed there to express his belief that such were the hand writing 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. MERRELL 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 a manager. 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 U. S. and that the circumstances of the accusations 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 had participated in this conspiracy, it was a subject for the exercise of the sound discretion of the Senate, whether such a person should remain in it. For these reasons, Mr. M. said he was against complying with the two first requests of Mr. S. 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 implicated 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 expressed 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 hand writing; he declined answering; and the mail 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 the 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 deliberate with the members of the Senate on every point that might be raised. If these 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 if it would infallibly follow should the ideas of the gentleman prevail. To obviate this difficulty he moved to add "to show cause why the report of the committee should not be adopted"—which was the course pursued in the case of Blount.
Mr. HILLHOUSE wished to say one word on the difficulty started by the gentleman from Mass. which, in his opinion, could never arise except from the imprudence of members. He presumed that every member would have such a regard to his character as not to enter into litigation with lawyers. The Senate would undoubtedly proceed with its usual solemnity; would hear the defence, and afterwards take the subject up by themselves; in the same way as they did in the case of Blount; in which case the counsel were fully heard, after which the Senate took up the subject and debated it by themselves very largely.
Mr. BAYARD said he did not know that the amendment varied materially the original motion, which, if adopted, would leave the whole question as open as under the original motion. For, if adopted, Counsel may come forward and show that the report ought not to be adopted, because the facts set forth in it were not legally proved, because time had not been allowed the accused to adduce testimony, and from other considerations. But he would take the liberty of telling the gentleman from Mass. that he had not taken the amendment which he had proposed from the record in the case of Blount. The resolution adopted in that case was the same as had been moved in this case by the gentleman from Connecticut; and that resolution having been adopted, the additional words, those words now moved as an amendment, were merely the act of the President of the Senate in addressing the counsel. The Journal says "the President then said," &c.
Mr. B. said he considered the course pursued 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 characterised even the members of the same body. The gentleman from Mass. 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 extensively 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 dignity 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 requests 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. His 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; 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 U. S. 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 subtleties ought to have been discarded 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 U. S. Give him an opportunity, and he says he can explain every thing 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 load 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 the 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 revolu-
tionary 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 concepts 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 exparte depositions taken in a case not connected with that under consideration. I beg the House to consider the consequences of such a precedent. 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? It 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 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.
There was, moreover, a strong distinction between the case of Blount and this case. In the first case there was but one point of fact; the letter being proved to be that of Mr. Blount every 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, incriminating 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. B. said he had gone further than he had intended when he first rose. He had no other object in rising than to point out the course which he thought ought to be pursued. The present question simply was to allow counsel. He did hope and presume there would be no difficulty on this point. In his opinion the Senate ought not 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 it should be found, that Mr. Smith 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. Adams said, he did not yet know whether the gentleman meant 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 resort as to say that his speech related to any thing 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, and that the committee was an inquisition.
[Mr. Bayard disclaimed any reference to a Spanish inquisition; he merely meant by inquisition a term equivalent to grand jury.]
Mr. Adams said he had no idea of being himself a party in this case. So considering it, he must view every thing 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 concepts, 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 what every man's experi-
ence in private life teaches him the value of. It is as necessary here as as any where 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 properly confined there; and the moment we issue from those halls we must take others. No man who has a sense of religion can take them without departing from his faith. Why are we bound by them any more than a man is in his private family? Suppose a man detects his servant in stealing, and tells his other servants to turn him out of his kitchen. Would he listen to the remonstrance that he was acting unjustly, because the act was not proved in a court of law according to the technical rules of evidence, and wait 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 enquires whether we are to take exparte 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's 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 precedent 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. Adams 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 [which as we have already stated it is unnecessary to repeat.]
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.
Mr. HILLHOUSE said he had no objection to the amendment, as from the explanation of gentlemen 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. GILES thought it would be right 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. GILES 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 sit 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 enquired 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 two thirds of the body is requisite.
Mr. Giles said he had one word to say as to the ideas of the gentleman from Delaware. He would show by his own remarks that he was guided by contradictory principles. He has observed that he is persuaded that all America is satisfied that A. 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 & nays, least from the length of time taken up by the gentleman from Delaware, there might be some impression made on the public mind that there existed an objection to the allowance 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 sound discretion. To show the light in which the discretion of a judge ought to be viewed he would quote the words of Lord Camden.
[Here Mr. B. quoted the strong language of Lord C. on this point.]
Mr. Bayard here recapitulated and expanded several of the arguments previously insisted upon by him.
But, said Mr. B. I am told by the gentleman from Virginia that I have departed from my own rule in what I have admitted with regard to the conspiracy of Mr. Burr. I stated that I had no doubt of the conspiracy of Burr; and the gentleman asks on what ground I have embraced this conviction. I believe it on the same ground that I believe there is such a place as Kentucky or Paris, without any deposition to that effect. But I will go further. In the whole course of the defence of Mr. Smith this conspiracy is admitted. Why, therefore, should we in this case dispute its existence? In all controversies, whatever is not denied is considered admitted. The only real question, therefore, is whether John Smith participated in this conspiracy. If the conspiracy is denied, I say it ought to be proved. I will put a case. Suppose a gentleman charged with participating in a conspiracy set on foot by General Wilkinson. I mean not to insinuate that he has ever been concerned in one, but I have a right to put the case—not meaning to injure that gentleman by intimating the smallest belief in it—but merely putting the case as such a charge has been made in the other House; suppose the individual charged and brought on his trial, and he should aver that he did not participate in such a conspiracy; and declare that no such conspiracy existed. Am I to be told that because this individual is charged with participating in it, it is to be taken for granted that it did exist? Suppose him charged with participating with a man I never heard of, may I not call for proofs of the conspiracy of that man? And have I not a right to call for facts and demand witnesses? I do not, however, presume that the general conspiracy of Aaron Burr will be denied; for the acquittals at Richmond do not negative the charge of a conspiracy as stated by the gentleman from Virginia.
The gentlemen from Massachusetts has been called upon for an explanation; but he has not condescended to make an explanation. May I be permitted to repeat the request. Does the gentleman mean to insinuate that any member on the floor from other than public considerations would defend an accused man, or on grounds which he considered wrong. If the gentleman persists in refusing an explanation, I have a right to say that in this case we want an attorney general, and if there is none, that still a prosecutor would not be wanting.
The Vice President called the attention of the Senate to the real question under consideration, and intimated his expectation that gentlemen would confine themselves to it.
Mr. POK said that, after this admonition from the Chair, it would be out of order to reply to the remarks of Mr. Bayard, which he should otherwise have noticed.
The question was then taken on the resolution offered by Mr. Hillhouse, and amended, at the instance of Mr. Adams (in which amendment Mr. H. acquiesced) and carried, by a unanimous vote.
When Wednesday was assigned for hearing Mr. Smith by counsel.