[Tenth Congress-First session.] JOHN SMITH, Senator from Ohio from October 25, 1803, till he resigned, April 25, 1808. November 27, 1807, the Senate resolved that a committee be appointed to inquire whether it was compatible with the privileges of the Senate that Mr. Smith, against whom bills of indictment were found at the United States circuit court of Virginia for treason and misdemeanor, should be permitted longer to have a seat therein; and that the committee inquire into all the facts regarding the conduct of Mr. Smith as an alleged associate of Aaron Burr, and report to the Senate. December 31, the committee reported that the conspiracy of Aaron Lurr and his associates was of such a character, and that its existence was so established by evidence, that it was incompatible with the privileges of the Senate that any person engaged in it should be permitted to hold a seat in the Senate. The committee submit to the Senate the evidence collected, and leave it to the Senate to determine whether the facts are sufficient to substantiate the participation of Mr. Smith in the conspiracy. The committee reported that the bills of indictment found against Mr. Smith in the United States circuit court at Richmond were precisely similar to those found against Aaron Burr; that owing to the fact that certain evidence was not admitted in the trial of Mr. Burr, the jury had found that he was "not proved to be guilty, under that indictment, by any evidence submitted to them "; that on account of this decision the counsel for the United States abandoned the prosecution against Mr. Smith; that the committee was not disposed to question the correctness of this decision on a case of treason before a court of criminal jurisdiction, but that whether the transactions proved against Aaron Burr did or did not amount, in technical language, to an overt act of levying war, there was no doubt in the minds of the committee that but for the vigilance and energy of the Government in crushing his designs they would have resulted in war; that a grand jury had charged Mr. Smith with being an accomplice in these designs, and that the fact that under the circumstances the prosecution against Mr. Smith had been abandoned did not, in the opinion of the committee, remove the imputation which the accusations of the grand jury had brought upon him; that the committee would not permit themselves to comment upon the evidence submitted or the answers which Mr. Smith had given as sufficient for his justification, but that they felt compelled to submit for the consideration of the Senate a resolution that by his participation in the conspiracy of Aaron Burr he had been guilty of conduct incompatible with his station as a Senator, and that he be expelled therefor. April 9, 1808, after long debate on the question to agree to the res olution, 19 voted yea and 10 nay; so that, two-thirds of the Senators not concurring therein, he was not expelled. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journal, 10th Cong., 1st sess., with the report of the committee from Annals of Congress, 10th Cong., 1st sess., vol. 1, pages 56-62. Special references to the debates of each day are inserted below. FRIDAY, November 27, 1807. The Hon. John Smith, from the State of Ohio, attended. On motion, the following resolution, having been amended, was agreed to: "Resolved, That a committee be appointed to inquire whether it be compatible with the honor and privileges of this House that John Smith, a Senator from the State of Ohio, against whom bills of indictment were found at the circuit court of Virginia, held at Richmond in August last, for treason and misdemeanor, should be permitted any longer to have a seat therein; and that the committee do inquire into all the facts regarding the conduct of Mr. Smith as an alleged associate of Aaron Burr, and report the same to the Senate." Ordered, That Messrs. Adams, Maclay, Franklin, Smith of Maryland, Pope, Thruston, and Anderson be the committee. During the discussion of the preceding resolution, Mr. Tiffin, by permission, read in his place a letter from Mr. Smith, as follows: WASHINGTON, November 27, 1807. DEAR SIR: Just having heard that a motion is pending in the Senate to appoint a committee to inquire into certain charges exhibited against me at Richmond by the late grand jury, I beg you, sir, to assure the Senate, in my name, that nothing will afford me more pleasure than to have a public investigation of the said charges, and an opportunity to vindicate my innocence, and I beg you, from your seat, to make this state ment. I am, dear sir, respectfully, yours, &c., Hon. Mr. TIFFIN. JOHN SMITH. [An account of the debate is found on pages 39-42 of Annals of Congress referred to in the head-note.] MONDAY, November 30, 1807. Mr. Adams stated that he was instructed by the committee appointed on the 27th instant to inquire into the conduct of John Smith, a Senator from the State of Ohio, to submit to the Senate the following resolution; which was read and agreed to: "Resolved, That the President of the United States be requested to cause to be laid before the Senate such information as may be in his possession in relation to the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr." Ordered, That the Secretary lay this resolution before the President of the United States. Mr. Adams, from the same committee, also stated that he was instructed to submit to the Senate the following resolution; which was read and agreed to: 'Resolved, That the committee appointed on the 27th instant to inquire and report the facts respecting the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr, be authorized to extend their inquiries to any other facts which, in their opinion, would be incompatible with his duty as a Senator of the United States, and that they be authorized to send for persons, papers, and records." WEDNESDAY, December 2, 1807. The following written message was received from the President of the United States, by Mr. Coles, his secretary: To the Senate of the United States: In compliance with the request made in the resolution of the Senate of November 30 I must inform them that when the prosecutions against Aaron Burr and his associates were instituted I delivered to the Attorney-General all the evidence on the subject, formal and informal, which I had received, to be used by those employed in the prosecutions. On the receipt of the resolution of the Senate, I referred it to the AttorneyGeneral, with a request that he would enable me to comply with it by putting into my hands such of the papers as might give information relative to the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr, and having this moment received from him the affidavit of Elias Glover, with an assurance that it is the only paper in his possession which is within the term of the request of the Senate, I now transmit it for their use. DECEMBER 2, 1807. The message was read. TH. JEFFERSON. Ordered, That the message and paper therein mentioned be referred to the committee appointed on the 27th of November last to inquire into the conduct of Mr. Smith as an alleged associate of Aaron Burr. FRIDAY, December 4, 1807. Mr. Adams stated that he was instructed by the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, to submit the following resolution; which was read and agreed to: Resolved, That the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, be authorized to admit the attendance of Mr. Smith.' MONDAY, December 7, 1807. Mr. Adams stated that he was instructed by the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, to submit the following resolution; which was read and agreed to: "Resolved, That the committee appointed to inquire and report the facts relating to the conduct of John Smith, a Senator from the State of Ohio, be authorized to cause to be printed, under their inspection, all such documents and papers touching the subject-matter of the inquiries on which they have been appointed as may appear necessary to the committee, previous to the presentation of the same to the Senate." THURSDAY, December 31, 1807. Mr. Adams stated that the committee appointed on the 27th of November last "to inquire whether it be compatible with the honor and privileges of this House that John Smith, a Senator from the State of Ohio, against whom bills of indictment were found at the circuit court of Virginia, held at Richmond in August last, for treason and mis demeanor, should be permitted any longer to have a seat therein," were ready to repor and he made the following motion; which was read and agreed to: Ordered, That John Smith, a Senator from the State of Ohio, be notified by the Vice President to attend in his place. The Vice-President accordingly notified Mr. Smith in the words following: "SIR: You are hereby required to attend the Senate in your place without delay. "By order of the Senate. "JOHN SMITH, Esq., "Senator from the State of Ohio." And Mr. Smith attended. Whereupon, "GEO. CLINTON, President of the Senate. Mr. Adams made report from the committee last mentioned; and the report was read. Ordered, That three hundred copies thereof be printed for the use of the Senate. The queries addressed by the committee to Mr. Smith, and his answers to the same, were read; also the testimony of James Taylor, esq., and Mr. Smith's letter to the committee relating thereto. A motion was made by Mr. Hillhouse that Mr. Smith's answers be printed for the use of the Senate; and objections arising thereon that the said answer contained exceptionable matter which ought not to be printed, It was agreed, by consent of Mr. Smith, that he should take back his answers, and expunge such exceptionable matters, and that the answers should then be printed, under the inspection of the chairman of the committee. [An account of the debate is found on pages 62, 63 of the Annals of Congress referred to in the head-note.] REPORT OF COMMITTEE. [The committee consisted of Messrs. Adams, Maclay, Franklin, Smith of Maryland Pope, Thruston, and Anderson.] Your committee are of opinion that the conspiracy of Aaron Burr and his associates against the peace, union, and liberties of these States is of such a character, and that its existence is established by such a mass of concurring and mutually corroborative testimony, that it is incompatible, not only with the honor and privileges of this House, but with the deepest interests of this nation, that any person engaged in it should be per mitted to hold a seat in the Senate of the United States. Whether the facts, of which the committee submit herewith such evidence as, under the order of the Senate, they have been able to collect, are sufficient to substantiate the participation of Mr. Smith in that conspiracy or not will remain for the Senate to decide. The committee submit also to the consideration of the Senate the correspondence between Mr. Smith and them, through their chairman, in the course of their meetings. The committee have never conceived themselves invested with authority to try Mr. Smith. Their charge was to report an opinion relating to the honor and privileges of the Senate and the facts relating to the conduct of Mr. Smith. Their opinion, indeed, cannot be expressed in relation to the privilege of the Senate without relating, at the same time, to Mr. Smith's right of holding a seat in this body; but in that respect the authority of the committee extends only to proposal, and not to decision. But as he manifested a great solicitude to be heard before them, they obtained permission from the Senate to admit his attendance, communicated to him the evidence in their possession by which he was inculpated, furnished him in writing with the questions arising from it which appeared to them material, and received from him the information and explanations herewith submitted as part of the facts reported. But Mr. Smith has claimed as a right to be heard in his defense by counsel, to have compulsory process for witnesses, and to be confronted with his accusers, as if the committee had been a circuit court of the United States. But it is before the Senate itself that your committee conceived it just and proper that Mr. Smith's defense of himself should be heard. Nor have they conceived themselves bound in this inquiry by any other rules than those of natural justice and equity due to a brother Senator on the one part, and to their country on the other. Mr. Smith represents himself on this inquiry as solitary, friendless, and unskilled, contending for rights which he intimates are denied him; and the defender of Senatorial privileges which he seems apprehensive will be refused him by Senators, liable, so long as they hold their offices, to have his case made their own. The committee are not unaware that in the vicissitudes of human events no member of this body can be sure that his conduct will never be made a subject of inquiry and decision before the assembly to which he belongs. They are aware that, in the course of proceeding which the Senate may now sanction, its members are marking out a precedent which may hereafter apply to themselves. They are sensible that the principles upon which they have acted ought to have the same operation upon their own claims to privilege as upon those of Mr. Smith; the same relation to the rights of their constituents which they have to those of the legislature which he represents. They have deemed it their duty to advance in the progress of their inquiry with peculiar care and deliberation. They have dealt out to Mr. Smith that measure which, under the supposition of similar circumstances, they would be content to find imparted to themselves; and they have no hesitation in declaring that under such imputations, colored by such evidence, they should hold it a sacred obligation to themselves, to their fellow-Senators, and to their country to meet them by direct, unconditional acknowledgment or denial, without seeking a refuge from the broad face of day in the labyrinth of technical forms. In examining the question whether these forms of judicial proceedings or the rules of judicial evidence ought to be applied to the exercise of that censorial authority which the Senate of the United States possesses over the conduct of its members, let us assume as the test of their application either the dictates of unfettered reason, the letter and spirit of the Constitution, or precedents domestic or foreign, and your committee believe that the result will be the same; that the power of expelling a member must, in its nature, be discretionary, and in its exercise always more summary than the tardy process of judicial tribunals. The power of expelling a member for misconduct results on the principles of common sense from the interest of the nation that the high trust of legislation should be invested in pure hands. When the trust is elective it is not to be presumed that the constituent body will commit the deposit to the keeping of worthless characters. But when a man whom his fellow-citizens have honored with their confidence on the pledge of his spotless reputation has degraded himself by the commission of infamous crimes which become suddenly and unexpectedly revealed to the world, defective indeed would be that institution which should be impotent to discard from its bosom the contagion of such a member, which should have no remedy of amputation to apply until the poison had reached the heart. The question upon the trial of a criminal cause before the courts of common law is not between guilt and innocence, but between guilt and the possibility of innocence. If a doubt can possibly be raised, either by the ingenuity of the party or of his counsel, or by the operation of general rules in their unforeseen application to particular cases, that doubt must be decisive for acquittal, and the verdict of not guilty perhaps in nine cases out of ten means no more than that the guilt of the party has not been demonstrated in the precise, specific, and narrow forms prescribed by law. The humane spirit of the laws multiplies the barriers for the protection of innocence and freely admits that these barriers may be abused for the shelter of guilt. It avows a strong partiality favorable to the person upon trial, and acknowledges the preference that ten guilty should escape rather than that one innocent should suffer. The interest of the public that a particular crime should be punished is but as one to ten, compared with the interest of the party, that innocence should be spared. Acquittal only restores the party to the common rights of every other citizen; it restores him to no public trust; it invests him with no public confidence; it substitutes the sentence of mercy for the doom of justice, and to the eyes of impartial reason in the great majority of cases must be considered rather as a pardon than a justification. But when a member of a legislative body lies under the imputation of aggravated offenses and the determination upon his cause can operate only to remove him from a station of extensive powers and important trust, this disproportion between the interest of the public and the interest of the individual disappears; if any disproportion exists it is of an opposite kind. It is not better that ten traitors should be members of this Senate than that one innocent man should suffer expulsion. In either case, no doubt, the evil would be great. But in the former it would strike at the vitals of the nation; in the latter it might, though deeply to be lamented, only be the calamity of an individual. By the letter of the Constitution the power of expelling a member is given to each of the two Houses of Congress, without any limitation other than that which requires a concurrence of two-thirds of the votes to give it effect. The spirit of the Constitution is perhaps in no respect more remarkable than in the solicitude which it has manifested to secure the purity of the Legislature by that of the elements of its composition. A qualification of age is made necessary for the members 79908-S. Doc. 1036, 62-3-76 to insure the maturity of their judgment; a qualification of long citizenship to insure a community of interests and affections between them and their country; a qualification of residence to provide a sympathy between every member and the portion of the Union from which he is delegated; and to guard, as far as regulation can guard, against every bias of personal interest and every hazard of interfering duties, it has made every member of Congress ineligible to office which he contributed to create, and every officer of the Union incapable of holding a seat in Congress. Yet, in the midst of all this anxious providence of legislative virtue, it has not authorized the constituent body to recall in any case its representative. It has not subjected him to removal by impeachment; and when the darling of the people's choice has become their deadliest foe can it enter the imagination of a reasonable man that the sanctuary of their legislation must remain polluted with his presence until a court of common law with its pace of snail can ascertain whether his crime was committed on the right or on the left bank of a river; whether a puncture of difference can be found between the words of the charge and the words of the proof; whether the witnesses of his guilt should or should not be heard by his jury; and whether he was punishable because present at an overt act or intangible to public justice because he only contrived and prepared? Is it conceivable that a traitor to that country which has loaded him with favors, guilty to the common understanding of all mankind, should be suffered to return unquestioned to that post of honor and confidence where, in the zenith of his good fame, he had been placed by the esteem of his countrymen, and in defiance of their wishes, in mockery of their fears, surrounded by the public indignation, but inaccessible to its bolt, pursue the purposes of treason in the heart of the national councils? Must the assembled rulers of the land listen with calmness and indifference session after session to the voice of notorious infamy until the sluggard step of municipal justice can overtake his enormities? Must they tamely see the lives and fortunes of millions, the safety of present and future ages, depending upon his vote recorded with theirs, merely because the abused benignity of general maxims may have remitted to him the forfeiture of his life? Such, in very supposable cases, would be the unavoidable consequences of a principle which should offer the crutches of judicial tribunals as an apology for crippling the Congressional power of expulsion. Far different, in the opinion of your committee, is the spirit of our Constitution. They believe that the very purpose for which this power was given was to preserve the Legislature from the first approaches of infection; that it was made discretionary because it could not exist under the procrastination of general rules; that its process must be summary, because it would be rendered nugatory by delay. Passing from the constitutional view of the subject to that which is afforded by the authority of precedent, your committee find that since the establishment of our present National Legislature there has been but one example of expulsion from the Senate. In that case the member implicated was called upon in the first instance to answer whether he was the author of a letter the copy of which only was produced, and the writing of which was the cause of his expulsion. He was afterwards requested to declare whether he was the author of the letter itself, and declining in both cases to answer, the fact of his having written it was established by a comparison of his handwriting and by the belief of persons who had seen him write, upon inspection of the letter. 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 of law was ever commenced upon the case. This event occurred in July, 1797. About fifteen months before that time, upon an application from the legislature of Kentucky requesting an investigation by the Senate of a charge against one of the members from that State of perjury, which had been made in certain newspaper publications, but for which no prosecution had been commenced, the Senate did adopt by a majority of 16 votes to 8 the report of a 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, very 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 report 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 mement, and not enough upon the numerous contingencies to which the general question |