About ten days after this, on the second and third of December, Mr. Smith goes to Cynthiana, Frankfort, and Lexington, to purchase provisions, and to sell bills of exchange. Here he accidentally sees again Mr. Burr. He finds that Mr. Burr is for the second time charged, and now before a grand jury, with that very offence of preparing an expedition against Mexico, which in his confidential communication to Mr. Smith he had explicitly avowed. And Mr. Smith, by the testimony of three of his own witnesses, hurries away from the scene to avoid being subpœnaed as a witness, declaring that he knows nothing on the subject that could either criminate or justify Mr. Burr. The first of these witnesses is Kelly, Mr. Smith’s confidential agent and storekeeper at Cynthiana; of whose character as a man of uprightness and veracity, the most respectable attestations are produced. After stating the motive of Mr. Smith’s going to Cynthiana, and thence to Lexington, Kelly’s deposition, produced there by Mr. Smith himself, proceeds thus:
“He returned and informed me that on his arrival at Lexington he understood that the principal men with whom he wished to transact business, were at Frankfort; that he was also informed that a prosecution, the second time, was commenced against Colonel Burr, and he (Smith) was told, that if it was known he was in the State, he would be subpœnaed as a witness; that he told his informers he would not put them to the trouble to summon him, if he had a fresh horse he would go on there immediately; finding he could not see the men he wished to see, he started for Frankfort; that on his arrival there he inquired for Major Morrison, I think he said, in two or three public houses, but could not find him; that he was informed the investigation into Burr’s conduct before the grand jury was delayed for want of General Adair, who was said to be a principal witness against him, and that in all probability proceedings would be stayed for several days, and as he (Smith) could not be detained so long from his business, particularly as he knew nothing that would either criminate or exculpate Colonel Burr; that if his testimony could be of any benefit either way he would have stayed with pleasure, but as he was entirely ignorant of any of Burr’s political views, he conceived to stay there for no purpose would be doing injustice to his private as well as public concerns, and therefore, as he was not summoned, he started away early next morning.”
Mr. Jourdan’s deposition, after relating Mr. Smith’s applications to him respecting the bills of exchange, says—
“The conversation then turned on the pending trial of Colonel Burr; and I mentioned that I had been called on as a witness; and observed that Burr had also been at your house; and was it known that you were in this place, that you would also be called on. You said you was willing; that you knew nothing of the business; but, as you could not get your business accomplished here, that if you had a fresh horse you would go to see Major Morrison, and save them any trouble of subpœnaing you.”
The deposition of Joseph Taylor is to the same effect; that Mr. Smith denied all knowledge of any thing which could operate either for or against Mr. Burr.
Now, sir, how was the fact? Was Mr. Smith thus ignorant? It seems to me that he was not. The disclosure which on the 23d of November, he himself has sworn Mr. Burr had made to him in confidence, was knowledge of the most decisive character on the question before the grand jury; was knowledge which, had Mr. Smith been even a private citizen, he was bound in duty to have gone and related to them. Admitting that even Mr. Smith could have believed that Burr intended the Mexican invasion only in case a war should break out; still the preparations he was making were unlawful; still he was guilty of the very charge made against him then before the grand jury; and had confidentially avowed the object to Mr. Smith. Had Mr. Smith gone before that grand jury, and told them, from the lips of Mr. Burr, what the affidavit of 6th January, 1807, declares upon oath; that grand jury, instead of dismissing Mr. Burr as they did, with commendation and applause, would have been bound, with the oath of God upon their consciences, to find a bill against him. The confession of Mr. Burr unquestionably brought him within the operation of the statute upon which he was prosecuted, and I cannot but attribute to Mr. Smith’s studious avoidance of attending upon that grand jury, all the unfortunate, and I may say calamitous consequences which have befallen this nation, from the failure of bringing Burr to justice at that time. Had he then been indicted, on Mr. Smith’s testimony alone, he must have been convicted. The alarms, the agitations, the extraordinary and irregular stretches of power at New Orleans, which have distressed every free and patriotic heart, would have been needless; would have been prevented. The progress of that pernicious enterprise would have been arrested there. The whole judicial authority of the United States would have been laid prostrate before the wiles of conspiracy. There would have been no trial; no occasion for a trial at Richmond; treason would have been nipped in the bud, and Mr. Smith himself would at this day have been here, in the full enjoyment of his reputation, with his consciousness of having rendered a service of the highest importance to his country. But, sir, unfortunately for him; unfortunately for us; unfortunately for his country, he had engaged his two sons to Mr. Burr. He could not testify against Burr without condemning himself, and he shrunk from the presence of the grand jury.
Ten days after this the President’s proclamation and Governor Tiffin’s orders for the militia to be called out, both arrived on the same day, the 13th of December, at Cincinnati; and from that time Mr. Smith’s exertions to carry into effect the orders both of the General and State Governments were characterized with great and extraordinary zeal. But even then he writes to the Secretary at War a narrative not exactly conformable to that afterwards contained in the answer to the committee; in the answer Mr. Smith declares repeatedly that all his doubts and suspicions about Mr. Burr had been removed by his open-hearted, candid letter of 26th October. In the letter to the Secretary of War, he speaks of himself as harboring so strong suspicions on Burr’s subsequent visit to Cincinnati in November, as then to have asked him pointedly if any object he had in view justified the suspicions that prevailed about him, and that from Mr. Burr’s apparent candor in answering this question he (Smith) entertained no doubt of him. Now, this apparent candor was an acknowledgment of the very same undertaking which the President’s proclamation called upon the people to suppress. The proclamation had no reference to the part of Burr’s project which aimed at the dismemberment of the Union—it was the intended invasion of Mexico, which it extended the arm of the nation to restrain—the very expedition upon which Mr. S. had engaged his two sons.
How was it possible that this disclosure of an unlawful design could have restored the confidence and received the countenance of Mr. Smith? It is this, with the circumstances attending it, and which I have noticed, that render Mr. Smith himself the most material of all the witnesses against him. The letter, I have shown, contained little to remove, and much—very much—to excite suspicion. The avowal of the intended march to Mexico was an avowal of guilt. Mr. Smith does not pretend that Mr. Burr hinted to him that the design was approved by the Government. The bitterness with which he spoke of the Government was surely, of itself, an indication to the contrary. Did not Mr. Smith know that this was an unlawful enterprise? Could he have been ignorant of this before? The first prosecution in Kentucky must surely have given him sufficient notice of that. Before he engaged his two sons, ought he not to have inquired how the Washita settlement was to be made?—how the same preparations could be transformed, at pleasure, from purposes of war to purposes of agriculture?—how the same men and the same things could possibly be applied to the invasion of one country and the settlement of another?—by what magic they were to beat their swords into ploughshares, and their spears into pruning-hooks? Even Peter Taylor—the stupid Peter Taylor, as Mr. Smith has pronounced and his counsel endeavored to prove him; even Peter Taylor—when Blannerhasset attempted to engage him for the Washita settlement, inquired what kind of seed they should carry with them; nor would he be satisfied with Blannerhasset’s evasions of this question, but urged him with it until he forced out the whole project—the Mexican empire—the royal diadem of Mr. Burr—and the dismemberment of the American Union! Peter Taylor was, indeed, as Mr. Smith says, a gardener. He certainly cannot, in point of understanding, be compared with Mr. Smith; yet, even he could bethink himself of the articles which would be suitable for his agency in a settlement of lands; even he could discern the difference between garden-seeds and gunpowder. And yet, Mr. Smith, a Senator of the United States—a settler in a new country—a confidential and intimate friend of Mr. Burr—engaged his two sons for an amphibious expedition of settlement or war, without putting a single question to ascertain how these schemes of contrariety could be reconciled together—without one single inquiry which could lead to a colorable pretence of right for the warlike part of the plan—preparations for war—levying of troops! Was a Senator of the United States to wait for the President’s proclamation to learn the unlawfulness or the danger to the liberties of the country of such enterprises, undertaken without public authority? Was he yet to learn that the power of making war and of raising soldiers has been deemed by the people of this nation of such magnitude and danger that they would not intrust them to the Executive authority, but have expressly and cautiously reserved them exclusively to the representatives of the nation assembled in Congress? And, until the declaration of war by Congress, he surely knew that every preparation of expeditions to invade the territories of a neighboring sovereign, was, even in the incipient stage of beginning and setting on foot, in direct violation of the laws of the land. The pretence that it was to be pursued only in case war should take place, did not make it at all more lawful, but made it, if any thing, more dangerous. Suppose, sir, that war had been declared, was it for Aaron Burr to say who should head corps of volunteers, or who should be the first to march into the Mexican provinces? Entertaining the opinion that I do and then did of Mr. Burr, I should have considered it as one of the greatest misfortunes which could have befallen the United States, even if they were at war, to have had such a man as him at the head of their armies. Nor can I consider it but as highly unbecoming in a member of the National Legislature to have given him countenance in this project of forcing himself upon the Government of the Union as the General of an army for the invasion of Mexico. It was encouraging and aiding a violation of the constitution in its vital principles; it was setting an example more to be dreaded by the people of the Union than the most formidable foreign war. And of all this Mr. Smith himself is the self-accusing witness. All the other witnesses are but in confirmation and aggravation of these decisive facts. Some of them indicate circumstances of very strong suspicions that Mr. Smith’s participation was much earlier and much deeper. Others strikingly demonstrate that he was acting under a consciousness of unlawful engagements; and all concur in producing upon my mind the conviction that this resolution ought to pass.
Mr. President, I have discharged a painful obligation. No discussion has ever devolved upon me, as a member of this body, in which I have taken a part with more reluctance than in this. Until these transactions occurred, there was perhaps not another member of the Senate in whose integrity I more confided: and but for this, there is none whom I should more readily take by the hand as a friend and a brother. I trust, sir, that I feel as I ought for his personal situation on this occasion, as well as for the interests and the feelings of his family. I am sensible, and have never lost sight of what is due from me to him as members of this Assembly. But there is also a duty to the character and reputation of this body; a duty to the State whose representation on this floor has been in part intrusted to him; and a duty to the whole nation whose public servants we are. In the discharge of these duties, I have felt myself compelled to submit these observations to the Senate, and with these I shall conclude.