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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
The cause before the Senate has been so fully heard and so ably discussed, that it was my intention to have given a silent vote, had not the gentleman from Massachusetts, Mr. Adams, declared in so pointed a manner, that even voting on a resolution would sanction the report 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, 1833.
criminal cause before the courts of common law, is not between guilt and innocence, but between guilt and the possibility of innocence." This is a principle which I can never sanction, 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 proof of guilt. In the present case, admit the presumption of innocence, and many parts of the conversations and conduct of the member accused, which are now relied on as a proof of his guilt, may be accounted for, as being exactly what an honest, unsuspecting man would 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. 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
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
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."
take place. It was the first time that a question
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.
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.:
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 pointed manner, that, of the sixteen Senators is said respecting the comparison of his hand-who, fifteen months before, voted for the diswriting, appears by the journal, not to have missal of the Kentucky memorial, eleven voted taken place in the Senate, or on the trial, but for the expulsion of Mr. Blount, the other five before the committee who made the report, and being no longer present, both cases involving the preparatory arrangements for the trial. the same principles. Was it necessary to insinuate that that subject was considered perhaps too much with reference to the particular circumstances of the moment? It is still more unfortunate that such reproachful insinuations should have been made, seeing, upon a careful examination in the report in the case of Mr.
In regard to the other precedent, the report of the committee goes on to say:
"The event (the expulsion of William Blount) occurred in July, 1797. About fifteen months before that time, upon an application from the Legislature of Kentucky, requesting an investi
Marshall, it is manifest that its principles are | pulsion from the exercise of criminal jurisdicentirely misapprehended. That part of the tion, will be sufficiently manifest from a report reads thus: 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.
I do most fully agree with the gentleman from Massachusetts that the Senate, for the purpose of exercising their censorial power of expulsion, have cognizance of the case before
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.
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 expulsion, is, by the constitution, express and unlimited; provided, only, that there be the concurrence of two-thirds. When the report says "the constitution does not give jurisdiction to the Senate, the consent of the party cannot give it," it must be understood to be an answer to Mr. Marshall's application for a trial to vindicate his character. The Senate not finding any occasion to pursue the inquiry for the purpose of exercising their censorial power of expulsion, assumed the principle, and in my opinion correctly, that, to establish the principle of innocence or guilt for any other purpose they have no jurisdiction; the consent of the party could not give jurisdiction. To assume such 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.
That for that purpose, they have cognizance of all crimes and offences, and are not bound to wait for the proceedings of the courts of common law. I further admit, that the same degree of evidence is not necessary to justify an expulsion of a member, as to convict him before a court and jury. For example, on a charge of treason, two witnesses are necessary to a conviction. On such a charge, I should not hesitate to expel a member on the testimony of a single witness of irreproachable character. What I insist on is, that the evi
Were I, in deciding this case, to be governed by political or party considerations, I should incline to vote in favor of the resolution on your table. But, when we reflect, that agreeing to the resolution is to disrobe a Senator of his honor, to doom a fellow-citizen, an amiable family, and an innocent posterity, to perpetual infamy and disgrace, party or political considerations ought not, cannot influence the decision. Impartial justice and the testimony, alone, must govern, and, I flatter myself, will govern every member of the Senate in the vote he is about to give.
Elias Glover, having volunteered in giving his deposition, when no accusation existed, was to be considered rather an accuser than a witness. An ex parte deposition, taken under such circumstances, could not by me be considered as evidence on a question of expulsion, had not the accused member and his counsel agreed to its admission, by which I was bound to consider it as evidence. And in my mind it is so material, that if the force of it had been destroyed by counter testimony, I must have voted for the resolution before us. But I have listened with pleasure, for it always gives me pleasure when a person accused can prove his innocence, to the evidence adduced, which has completely done away the force of Glover's deposition. The gentleman from Massachusetts admits, and every member who has spoken seems to agree, that no reliance can be placed upon it; I shall therefore lay that out of the case; as also the other reference attempting a direct proof of a participation in Aaron Burr's conspiracy; as in this also I fully agree with the gentleman from Massachusetts, that it amounts to very little. It is the conduct and confessions of Mr. Smith, by which his guilt is endeavored to be established; and when such talents and eloquence as are possessed by the gentleman from Massachusetts are brought to bear upon, and urged with so much energy and force against an individual accused of being concerned in plots and conspiracies against the government of his country, charges peculiarly calculated to excite jealousy and suspicion, innocence itself could hardly expect to escape. After hearing his able and eloquent argument, I was much gratified by the motion of the gentleman from Virginia, Mr. Giles, to postpone. I wished for one night to consider the subject; I was not then prepared to make a reply.
The gentleman from Massachusetts has relied on the conversations, confessions, and conduct of Mr. Smith to prove his guilt, but he does not take the whole conversations and confessions together; and it is a rule of law, always admitted, and never to be departed from, that when the confession of the party is taken, the whole must be taken together; and not to make out proof of guilt by selecting different detached parts, leaving out other parts that go to explain what otherwise might appear criminal. A strict adherence to this rule will leave little of evidence or even ground of suspicion of guilt |
in this case. If all Mr. Smith's conversations and confessions are taken together, there can remain little doubt of his innocence.
The first circumstance in Mr. Smith's conduct which is laid hold on, and on which the gentleman of Massachusetts has built his argument to establish his guilt, is, that Mr. Smith has confessed that in September, 1806, he gave Aaron Burr a hospitable reception under his roof, for four or five days; that he afterwards saw him again in Cincinnati and Kentucky. What was there suspicious in all this? Who was Aaron Burr? And what was the situation of Mr. Smith in relation to him, that extending to him the rights of hospitality should excite suspicion, and fix the imputation of crime? Aaron Burr was a man who had stood high in the confidence of the people of the United States -a man who had been associated with the present chief magistrate, and had received an equal number of votes of the electors for President-a man who had been by the voice of his country placed in the second office in the nation-a man who for four years filled the chair you now occupy, and presided over this Senate with impartiality and dignity; and in a manner to command universal approbation. So great was the ascendency which he had acquired in this body, that towards the close of his term of service a bill was passed granting him for life the privilege of sending and receiving letters and packets through the mail free of postage, a privilege which had never been extended to any but a President of the United States and Mrs. Washington. So great was the confidence of the majority of the Senate in Aaron Burr, as to produce an unusual zeal, no doubt a laudable zeal, for passing the bill. It was pressed in an unusual manner; and we were called to a decision when he was himself in the chair; he who could almost look down opposition. Under such circumstances it was painful to oppose the bill; and nothing but a strong sense of duty could have impelled any one to make opposition. The yeas and nays on the journal will show how great a portion of the Senate, of which number was Mr. Smith, had so high a confidence in Mr. Burr. At that time, I had no more suspicion than the majority of Colonel Burr's having any treasonable designs; though, in opposition to the bill, I did state it as a possible case, that a Vice President, ambitious of rising to the first office in the nation, and meeting with disappointment, might become disaffected and engaged in treasonable plots to overturn the government, and avail him of his privilege and the mail to circulate his treason into every corner of the Union. The bill was arrested in the House of Representatives.
The Senate also adopted the following: Resolved, unanimously, That the thanks of the Senate be presented to Aaron Burr, in testimony of the impartiality, dignity, and ability with which he has presided over their deliberations; and of their entire approbation of his
conduct, in the discharge of the arduous and | the Union, or invade the territory of a friendly
But the gentleman from Massachusetts has compared the case of Mr. Smith with that of Commodore Truxton, and stated that upon Burr's disclosing his plans to the latter, he was asked this all-important question-“Is the executive of the United States privy to or concerned in the prjoect?" This, says he, ought to have been the conduct of Mr. Smith; this would have been his conduct if he had been an innocent and honest man. I little thought that Commodore Truxton's deposition would have been resorted to in this case; a deposition which had not been read; a deposition not taken on the trial in the presence of Mr. Smith, nor in any way relating to his case. It must be an uncommon zeal that could have induced any one, possessing the legal knowledge of the gentleman from Massachusetts, to have resorted to that as evidence. But, sir, the answer to this is plain. Mr. Burr did not go as far with Mr. Smith as with Commodore Truxton,-otherwise Mr. Smith would probably have asked him the same question. But so much reliance having been had on Commodore Truxton's deposition to prove Mr. Smith's guilt, on the score of omissions, as well as of what he has done, I must be permitted to read a part of that deposition; it is in these words, viz:
"About the beginning of the winter of 1805-6, Colonel Burr returned from the western country and came to Philadelphia. He frequently in conversation mentioned to me certain speculations in western lands. These conversations were uninteresting to me, and I did not pay much attention to them. Colonel Burr requested me to get the navy of the United States out of my head, as he had something in view, both honorable and profitable, which he wished to propose to me. I considered this as nothing more than a desire to get me interested in land speculations. These conversations were frequently repeated; and some time in the month of July 1806, Colonel Burr observed that he wished to see me unwedded from the navy of the United States, and not to think any
I was happy on this occasion to unite in what I considered a just tribute of applause for his conduct as President of the Senate.
This was the close of Aaron Burr's political career; this was the last public office he sustained in the nation, and from that time, till Mr. Smith received the pencilled note asking for the hospitality of his house for a few days; it was not publicly known that he had done any thing to take off the impression which his official conduct as Vice President, and those public acts of the Senate, had made. Under these circumstances, and considering the intimacy and friendship, which had been contracted while they had been associated in the same political body, the Senate of the United States, what could Mr. Smith do? What did his early impressions, all the habits of his life, and the honorable feeling and sentiments of a gentleman imperiously demand of him to do? The answer will be anticipated; he could do no otherwise than extend to him the rights of hospitality, receive and treat him as a gentleman. Had he been an entire stranger he could not have done otherwise, without being considered as having disgraced his native state, for he was born in Virginia, so famed for hospitality, not only to friends, but to strangers. Had Mr. Smith done otherwise than he did, would he not have been disowned as unworthy to be called a Virginian? This act of hospitality and politeness is now considered as a crime, which is to fix indelible disgrace on Mr. Smith and his family.
The next thing relied on is, that Mr. Smith being informed of the project and schemes of Mr. Burr, concealed them. The gentleman from Massachusetts has told us that if Mr. Smith had come forward and testified before the grand jury of Kentucky, Burr would have been convicted, and his treasonable plot, which has done so much mischief, arrested. The disclosure which Mr. Smith states to have been made to him, and there is no proof on the subject but what comes from himself, is as follows, viz: Col. Burr said to him, "Mr. Smith, my object in a few months will be disclosed; you will not find it dishonorable or inimical to this government. I feel superior to the mean artifices which are ascribed to me; calumniators I do not notice, for as fast as you will put one down, another will rise up. This much I will venture to tell you; if there should be war between the United States and Spain, I shall head a corps of volunteers, and be the first to march into the Mexican provinces; if peace should be preserved, which I do not expect, I shall settle my Washita lands, and make society as pleasant about me as possible." Now I ask, Mr. President, was there any thing criminal, was there any thing unlawful in all this? Was there any thing to excite suspicion that Aaron Burr was engaged in a treasonable plot to sever