Yale College, and marched out to oppose the enemy. They met the advanced guards of the British on the parade, near the church in West Haven, fired upon them and forced a retreat to the main body; but owing to superior numbers, the little band was soon after compelled to leave the field. That Mr. Hillhouse's services at this critical period were of great importance, cannot be denied. "It is not too much to say," writes Doctor Bacon, "that it was owing in no small measure to his sagacity in planning and intrepidity in executing those hasty and imperfect measures of defence which alone were practicable, that New Haven was saved from the flames."

At the age of twenty-five years, he was elected by his townsmen to the Legislature of Connecticut, and continued in the service of the State, either as a representative or in the council for eleven years. During the same period, he was three times chosen to the Continental Congress, but always declined serving in that capacity. In 1782, he was appointed treasurer of Yale College, and held the office until the day of his death.

On the twenty-fourth of October, 1791, he took his seat in the House of Representatives of the United States, as a member from his native State, and two days after, was appointed with Mr. Boudinot, Mr. Giles, Mr. Gerry, and others, on a Committee of Elections. His first remarks in Congress appear in the debate upon the Ratio of Representation. In 1794, he was transferred to the Senate, and remained there until 1810. He took a prominent part in all the important debates, acquiring a sterling reputation for diligence, influence, and usefulness. Wherever he had a duty to perform, he was always ready and foremost.

His resolution submitted to the Senate on the twelfth day of April, 1808, proposing certain amendments to the Federal Constitution, in regard to the mode of choosing members of Congress and the President of the United States, was one of the most noted measures of his senatorial career. He proposed a lower House of Congress chosen annually by the people; a Senate, the members of which should be elected once in three years; and a President with much less power than at present is given to that officer, who should be annually selected from among the Senators by lot. These propositions he supported in an able and extended speech. The measure excited considerable observation at the time, and has been the subject of a great variety of opinions among many of the most distinguished men of America. Chief Justice Marshall, in answer to a letter from Mr. Hillhouse written in the spring of 1830, thus speaks of the subject:-"I read your speech, when first published, with great pleasure and attention, but was not then a convert to either of the amendments it suggested. In truth there is something so captivating in the idea of a chief executive magistrate who is the choice of a whole people, that it is extremely difficult to withdraw the judgment from its influence. The advantages which ought to result from it are manifest. They strike the mind at once, and we are unwilling to believe that they can be defeated, or that the operation of choosing can be attended with evils which more than counterbalance the actual good resulting from the choice. It is humiliating, too, to admit that we must look in any degree to chance for that decision which ought to be made by the judgment. These strong, and apparently rational convictions can be shaken only by long observation and painful experience. Mine are, I confess, very much shaken, and my views of this subject have changed a good deal since 1808. I consider it, however, rather as an affair of curious speculation, than of probable fact. Your plan comes in conflict with so many opposing interests and deep-rooted prejudices, that I should despair of its success were its utility still more apparent than it is:—All those who are candidates for the Presidency, either immediately or remotely, and they are more numerous than is imagined, and are the most powerful members of the community, will be opposed to it. The body of the people will also most probably be in opposition; for it will be difficult to persuade them that any mode of choice can be preferable to election, mediate or immediate, by themselves. The ardent politicians of the country, not yet moderated by experience, will consider it as an imputation on the great republican principle, that the people are capable of governing themselves, if any other mode of appointing a chief magistrate be substituted for that which depends on their agency. I believe, therefore, that we must proceed with our present system till its evils become still more obvious; perhaps, indeed, till the experiment shall become impracticable, before we shall be willing to change it.

VOL. II.-10

"My own private mind has been slowly and reluctantly advancing to the belief that the present mode of choosing the chief magistrate threatens the most serious danger to the public happiness. The passions of men are inflamed to so fearful an extent, large masses are so embittered against each other, that I dread the consequences. The election agitates every section of the United States, and the ferment is never to subside. Scarcely is a President elected, before the machinations respecting a successor commence. Every political question is affected by it. All those who are in office, all those who want office, are put in motion. The angriest, I might say the worst passions, are roused and put into full activity. Vast masses, united closely, move in opposite directions, animated with the most hostile feelings towards each other. What is to be the effect of all this? Age is, perhaps, unreasonably timid. Certain it is that I now dread consequences which I once thought imaginary. I feel disposed to take refuge under some less turbulent and less dangerous mode of choosing the chief magistrate, and my mind suggests none less objectionable than that you have proposed."

William H. Crawford, the distinguished statesman and jurist, viewed the plan with favor and lent to it his support; as will be observed in the accompanying extract of a letter from him to Mr. Hillhouse:-"I recollect distinctly the proposition of amendment to the Constitution, which you submitted to the Senate twenty-two years ago, and which I then seconded. At that time I had not made up my mind definitely upon the principle of the amendment. Reflection and experience have convinced me that the amendment is correct. I am now entirely convinced that great talents are not necessary for the chief magistracy of this nation. A moderate share of talents, with integrity of character and conduct, is all that is necessary. Under the principle of your amendment I think there is little probability that a President would be elected, weaker than Col. or with less practical common sense than Mr. But I am not certain that the nation is prepared for such an amendment. There is something fascinating in the idea of selecting the best talents in the nation for the chief magistrate of the Union. The view which ought to decide in favor of the principle of your amendment is seldom taken. The true view is this: elective chief magistrates are not, and cannot, in the nature of things, be the best men in the nation; while such elections never fail to produce mischief to the nation. The evils of such elections have generally induced civilized nations to submit to hereditary monarchy. Now the evil which is incident to this form of government, is that of having the oldest son of the monarch for ruler, whether he is a fool, a rascal, or a madman. I think no man who will reflect coolly upon the subject, but would prefer a President chosen by lot out of the Senate, to running the risk of having a fool, a rascal or a madman, in the oldest son of the wisest and most benevolent sovereign that ever lived. When the amendment is considered in this point of view, I think it will find favor, especially when it must be admitted that the election of a President in this manner will be productive of as little turmoil and agitation as the accession of the son to the father in hereditary monarchies. The more I reflect upon the subject, the more I am in favor of your amendment." Added to the respectful consideration of Mr. Marshall and Mr. Crawford, Mr. Hillhouse's propositions received the attention of Mr. Madison and the approbation of Chancellor Kent.*

In 1810 Mr. Hillhouse having been appointed by the Connecticut Legislature commissioner of the School Fund, resigned his seat in the Senate, and returned to New Haven. By his skill, industry, perseverance and fidelity he raised the fund out of an entangled and embarrassed condition, and on retiring from the office in 1825, left it increased twofold. His efforts in behalf of Yale College were continual and untiring. Through his influence a grant was made to that institution, by the State legislature, "at a time when perhaps nothing else could have saved it from total ruin," and thus the once "humble and feeble institution" has been placed in the honorable and prominent position which it now occupies among the literary and educational institutions of the world.

Nor were his energies devoted entirely to the interests of his adopted town. In the great work

* See the paper read by James H. Raymond before the New York Historical Society, May, 1848;-on Proposed amend ments to the Constitution of the United States, with original unpublished Letters from Distinguished Statesmen.

of internal improvement he embarked with vigor and enthusiasm. For six years after his resignation of his office as commissioner of the school fund, he was engaged in the construction of the Farmington and Hampshire Canal, and only relinquished his charge a few months previous to his death. Those few months were spent in revising his private papers, arranging his correspondence, and the usual duties of his office in connection with Yale College. He died of apoplexy, on the twenty-ninth of December, 1832. He had been during the morning of that day attending a meeting of the prudential committee of the college, apparently in his usual health. About noon he returned to his house, and sat down, reading letters received that morning. Without speaking to any one, he rose from his chair and entered his bed-room. As it was not his practice to lie down during the day, a member of the family followed him in a moment, and found him lying in the bed already dead.*

SPEECH IN THE CASE OF JOHN SMITH.

Mr. Hillhouse delivered the following argument in the Senate of the United States, on the ninth of April, 1808, on the following resolution. "Resolved, that John Smith, a Senator from the State of Ohio, by his participation in the conspiracy of Aaron Burr, against the peace, union and liberties of the people of the United States, has been guilty of conduct incompatible with his duty and station as a Senator of the United States; and that he be therefore, and hereby is, expelled from the Senate of the

United States."

criminal cause before the courts of common law, is not between guilt and innocence, but beThis is a principle which I can never sanction, tween guilt and the possibility of innocence." nor in the smallest degree countenance by my vote. In every country where civil liberty and individual rights are regarded, the common law rule is, that the trial is between innocence and guilt; and that every person is to be deemed innocent until his guilt is proved; a rule, which so long as we shall preserve our liberties, cannot be abandoned. Once admit that the person accused is to be presumed guilty, and to be put to prove the possibility of his innocence, and the same circumstances that would otherwise go to establish innocence, would be converted into The cause before the Senate has been so fully proof of guilt. In the present case, admit the heard and so ably discussed, that it was my in- presumption of innocence, and many parts of tention to have given a silent vote, had not the the conversations and conduct of the member gentleman from Massachusetts, Mr. Adams, accused, which are now relied on as a proof of declared in so pointed a manner, that even his guilt, may be accounted for, as being exvoting on a resolution would sanction the re-actly what an honest, unsuspecting man would port of the committee which accompanied it; a report containing principles which I can never sanction by my vote; principles which go to discredit all our criminal tribunals, and those rules of proceeding and of evidence which govern the decision of courts; rules which alone can shield innocence and protect an accused individual against governmental prosecution, or the overwhelming power of a formidable combination of individuals determined on his destruction-principles which would plant a dagger in the bosom of civil liberty.

Of the many erroneous principles contained in that report, there is but one which I shall think it necessary particularly to notice. The question says, "the report upon the trial of a

*New York Gazette of January 4th, 1883. No extended

account of Mr. Hillhouse has yet been published. The best sketch of his life and services was written by Doctor Leonard Bacon of New Haven, and published in the Quarterly Christian Spectator, of June, 1838.

have said and done; but upon the supposition that he was engaged in Aaron Burr's conspiracy, many presumptions of his guilt may be drawn from them. This has been the ground assumed by the gentleman from Massachusetts, and on this he has built his argument. In this way the accused member by doing what was commendable, and what was his duty as a good citizen to do, has furnished evidence of his guilt.

As to the two precedents referred to, and which appear on the journals of the Senate, they are misapprehended, and the facts entirely misstated in the report of the committee. In one case I was an actor in the scene, being then a Senator, and have a perfect recollection of the facts, and know the statement to be wholly erroneous. Referring to the case of William Blount the report says:

"In all these points the committee perceive the admission of a species of evidence, which in courts of criminal jurisdiction would be excluded; and in the resolution of expulsion, the Senate declared the person inculpated 'guilty

of a high misdemeanor,' although no presentment or indictment had been found against him, and no prosecution at law was ever commenced upon the case."

By the journals of the Senate it appears that -"On motion, Mr. Martin and Mr. Cocke of the Senate, being sworn, severally testified, on the inspection of the letter said to be written by Mr. Blount, that it was his handwriting, they being acquainted therewith, and having seen him write."

This entry of the journal corresponds with my recollection of the fact. This was legal testimony, and the only testimony admitted on the trial.

Here Mr. Adams called for the reading of that part of the journal which states that Mr. Blount was requested by the President of the Senate to declare whether or not he was the author of the letter. The journal was read, and was as follows, viz.:

The president requested of Mr. Blount to "declare whether or not he was the author of the letter, a copy of which was communicated with the message of the President of the United States of the 3d instant. Mr. Blount declined an answer."

gation by the Senate of a charge against one of the members of that State of perjury, which had been made in several newspaper publications, but for which no prosecution had been commenced. The Senate did adopt, by a majority of sixteen votes to eight, the report of the committee, purporting that the Senate had no jurisdiction to try the charge, and that the memorial of the Kentucky Legislature should be dismissed. There were indeed sufficient reasons of a different kind assigned in the same report, for not pursuing the investigation in that particular case any further; and your committee believe, that in the reasoning of that, some principles were assumed, and some inferences drawn, which were altogether unnecessary for the determination of that case, which were adopted without a full consideration of all their consequences, and the inaccuracy of which was clearly proved by the departure from them in the instance which was so soon afterwards to take place. It was the first time that a question of expulsion had ever been agitated in Congress, since the adoption of the Constitution. And the subject being thus entirely new, was considered perhaps too much with reference to the particular circumstances of the moment, and not enough upon the numerous contingencies to which the general question might apply. Your committee state this opinion with some confidence, because of the sixteen Senators, who in

Mr. A. said that this was evidence not admis- March, 1796, voted for the report dismissing

sible in a court of law.

Mr. Hillhouse proceeded.

the memorial of the Kentucky legislature; eleven on the subsequent occasion, in July, 1797, voted also for the report, which concluded with a resolution for the expulsion of Mr. Blount. The other five were no longer present in the Senate. Yet if the principles advanced in the first report had been assumed as the ground of proceeding at the latter period, the Senate would have been as impotent of jurisdiction upon the offence of Mr. Blount, as they had supposed themselves upon the allegations against Mr. Marshall.

I sat in judgment on that case, and know that Mr. Blount's declining to answer was not considered as evidence. The question was asked, because Mr. Blount might have no objection to answer; he might have supposed the contents harmless, or have been able to give a satisfactory explanation thereof-he being a member of their own body-it was not more than civil to give him this opportunity before they proceeded to prove the letter upon him. It was Mr. President, I was not then of the Senate, impossible the Senate should have made the in- but feel for the character of its members, and quiry for the purpose of drawing from Mr. regret extremely, that, in drawing this report, Blount an accusation of himself; or that they it should have been deemed necessary to menshould be capable of converting his refusal to tion the then Senate, which was composed of answer into proof of guilt, in direct violation many of the most respectable characters of our of that fundamental principle of civil liberty, country, in a manner that seems reproachful, that no man shall be compelled to accuse him- and to imply that the majority were governed self. The rule goes so far as to protect even a in their votes by political or party considerawitness from being obliged to answer any questions. Could it be necessary to state, in such a tion which may go to criminate himself. What is said respecting the comparison of his handwriting, appears by the journal, not to have taken place in the Senate, or on the trial, but before the committee who made the report, and the preparatory arrangements for the trial.

pointed manner, that, of the sixteen Senators who, fifteen months before, voted for the dismissal of the Kentucky memorial, eleven voted for the expulsion of Mr. Blount, the other five being no longer present, both cases involving the same principles. Was it necessary to insinuate that that subject was considered perhaps too much with reference to the particular "The event (the expulsion of William Blount) circumstances of the moment? It is still more occurred in July, 1797. About fifteen months unfortunate that such reproachful insinuations before that time, upon an application from the should have been made, seeing, upon a careful Legislature of Kentucky, requesting an investi-examination in the report in the case of Mr.

In regard to the other precedent, the report of the committee goes on to say:

Marshall, it is manifest that its principles are entirely misapprehended. That part of the report reads thus:

Mr. Marshall is solicitous that a full investigation of the subject should take place in the Senate, and urges the principle, that "consent takes away error,' as applying on this occasion to give the Senate jurisdiction. But, as no person appears to prosecute, and there is no evidence adduced to the Senate, nor even a specific charge, the committee think any further inquiry by the Senate would be improper. If there were no objections of this sort, the committee would still be of opinion that the memorial could not be sustained. They think that, in a case of this kind, no person can be held to answer for an infamous crime, unless on a presentment or an indictment of a grand jury; and that, in all such prosecutions, the accused ought to be tried by an impartial jury of the State and district wherein the crime shall have been committed. If, in the present case, the party has been guilty in the manner suggested no reason has been alleged by the memorialists why he has not long since been tried in the State and district where he has committed the offence. Until he is legally convicted the principles of the constitution and of the common law, concur in presuming that he is innocent; and the committee are compelled by a sense of justice to declare, that, in their opinion, this presumption in favor of Mr. Marshall, is not diminished by recriminating publications which manifest strong resentment against him. And they are also of opinion, that, as the constitution does not give jurisdiction to the Senate, the consent of the party cannot give it; and that, therefore, the said memorial ought to be dismissed.

pulsion from the exercise of criminal jurisdiction, will be sufficiently manifest from a reference to the memorial and report, from which it will further appear, that charge was grounded on what had taken place in the courts of appeals of Kentucky, eighteen months previous to Mr. Marshall's having been appointed a Senator, and had been the subject of newspaper discussion, and was fully known to the legislature, when the appointment was made. In the present case, suppose the Senate had been satisfied that no inquiry was necessary for the purpose of exercising their censorial power of expulsion, and Mr. Smith had requested the Senate to institute an inquiry for the purpose of giving him an opportunity of vindicating his innocence, would not the Senate give him the same answer as was given in the case of Mr. Marshall? "No person can be held to answer for an infamous crime, unless on a presentment or indictment of a grand jury," &c.; "that as the constitution does not give jurisdiction to the Senate, the consent of the party cannot give it." That the Senate have no power, by the constitution, to transform themselves into a court of criminal jurisdiction to try any offence whatever, but a right, only, to inquire into such facts as may be necessary to enable them to exercise the power of expulsion. That the constitutional authority of the Senate to expel a member is not the jurisdiction of a court instituted for the trial and punishment of crimes, but a political power, to be exercised only when necessary for preserving the purity of this branch of the legislature, is evident from the consideration that it does not exempt a person from the liability to be tried and punished by the criminal tribunals of the country. The use that is attempted to be made of this precedent, shows in a strong point of light the impropriety and impolicy of attempting to settle abstract questions, or to detail reasons not necessary for coming to a proper result in the case before us, being liable to be misunderstood or misstated.

Mr. President, the principle laid down in this report, as I then, and now understand it, is, that the constitution not having given to the Senate criminal jurisdiction, the consent of the party could not give it. That it could not refer to the power of expulsion is manifest, because the jurisdiction of the Senate in cases of expul- I do most fully agree with the gentleman sion, is, by the constitution, express and un- from Massachusetts that the Senate, for the limited; provided, only, that there be the con- purpose of exercising their censorial power of currence of two-thirds. When the report says expulsion, have cognizance of the case before "the constitution does not give jurisdiction to us. That for that purpose, they have cognithe Senate, the consent of the party cannot zance of all crimes and offences, and are not give it," it must be understood to be an answer bound to wait for the proceedings of the courts to Mr. Marshall's application for a trial to vin- of common law. I further admit, that the dicate his character. The Senate not finding same degree of evidence is not necessary to any occasion to pursue the inquiry for the pur- justify an expulsion of a member, as to convict pose of exercising their censorial power of him before a court and jury. For example, on expulsion, assumed the principle, and in my a charge of treason, two witnesses are necesopinion correctly, that, to establish the princi- sary to a conviction. On such a charge, I ple of innocence or guilt for any other purpose should not hesitate to expel a member on the they have no jurisdiction; the consent of the testimony of a single witness of irreproachable party could not give jurisdiction. To assume character. What I insist on is, that the evisuch jurisdiction, would be to convert the Sen-dence admitted must be legal evidence, and ate into a criminal tribunal, which, by the con- such as would be admissible in a court of law; stitution, is reserved to the common law courts, not ex parte deposition, hearsay evidence, or and an impartial jury of the State and district. surmises founded on mere conjecture or susThe reason for distinguishing the power of ex-picion.