Part 237

Mr. ROWAN moved the resolution as above stated.

Mr. BACON said, notwithstanding the evidence which had just been read, he would give the reasons why he could not yet vote for this House to act in any manner on this subject, more especially as proposed by this resolution. It was not to be concealed that the impressions made upon his mind by the statement of the gentleman from New Orleans were very considerable; but the impressions which that or any other statement were calculated to make, were very different from the question of what it was their duty to do in relation to it. He hoped that they would not be so much impressed by it (for it contained a great deal he must confess) as to suffer it to impel them into a path wide of their constitutional limits. He did not mean to express a definite sentiment as to the guilt or innocence of the officer involved.

He would not, under the privilege of his seat, on the one hand blazon the merits of General Wilkinson to the world, nor on the other, declare that he had sufficient evidence of his guilt. He would leave it to the unbiased decision of the proper tribunal.

Mr. B. observed the other day, and would now repeat it, that it was not within their power to adopt the resolution then under consideration, or that now offered by the gentleman from Kentucky. He then and now conceived that the offence with which General Wilkinson was charged, might be cognizable by more than one department--certainly by the Executive, from his being a military officer. He could say nothing about the inquiry now instituted one way or the other; for if the constitution did not authorize them to complete an inquiry, they had no right to interfere with it, being the exclusive province of the Executive. It struck him further, that if the facts in this statement should be proven on a full examination to be true, (and he did not call its correctness in question, for he had heard the same things from other people,) he could not see why it was not a case cognizable by a judicial tribunal. The constitution expressly forbade any person holding an office under the United States to take a pension or donation from a foreign power. The act of receiving money from a foreign power, therefore--the charge made against General Wilkinson--was a crime against the supreme law of the land, and cognizable by the judicial authority. If, therefore, we could, as proposed, instruct, request, or in any manner interfere with the Executive with respect to that portion of the inquiry which appertains peculiarly to the Executive, as the only power competent to remove this officer, why may we not in the same manner interfere with the jurisdiction or cognizance of the Supreme Court? He could see no difference; with equal justice they could interfere with one as with the other.

Gentlemen who were in favor of an inquiry in this form, could not have considered the subject so maturely as they ought. This was a Government of distributive powers. One class had been delegated to the Representative body, one to the Executive, and another to the Judiciary. If they once began each to invade the other’s jurisdiction, the distributive system was destroyed. It has been said that we are the Representatives of the people; that it is our duty to see that the Republic take no harm. This expression was calculated perhaps to captivate the public ear, and acquire popularity, as well as to captivate the House. But whatever they might think of what ought to have been provided, they ought to consider what was. I do not think, because we may on this, or any other occasion, suppose that we could do a great deal of good, we ought to take any steps towards effecting an object until we contemplate our particular powers in relation to that object. It has been said that this House is the grand inquest of the nation. I do not know what is meant by this expression; but if I understand the meaning of the term, it conveys the same meaning as grand jury. Now, Mr. B. said, he could not agree to any position that this House was legitimately, on general subjects, the grand inquest of the nation. With respect to impeachments, and in that case alone, were they the grand jury, for then the two Houses acted in a judicial capacity--this House being the grand inquest to inquire, and the Senate being the petit jury to judge of their presentment. Now, if this House were the grand inquest to inquire into this, or a similar case, in which an inquiry might seem to be conducive to the interest of the nation, and were to present a result, where was the jury to judge of the truth of their verdict? Was it to be tried by the Senate? That was not pretended to be the course.

On all these accounts, therefore, whatever was the impression which the paper this morning laid on the table might be calculated to produce on their minds, he thought they ought sedulously to attend to the constitutional limits of their duty, and not conclude, merely because they might in any case act beneficially, that they had the power to act in such case.

He had before observed, that he would not express an opinion; but he would say that an inquiry ought to be had; it will, it must be had, and it should be a full and impartial inquiry. If the inquiry which had been instituted were but the semblance of an inquiry, for one it would not satisfy him, or the people, or the nation; it ought not to satisfy them. Gentlemen had said that a military court of inquiry would not be competent. Mr. B. did not know what might be their particular power as to sending for persons; but if that court had not sufficient power, it was in the power of the House to clothe them with it. He thought they might, though he would not say that they ought to do this. As a court of inquiry might have been, or could be, clothed with this power; and, adverting to what he had before said, that it was a case cognizable by a judicial tribunal; and if so, that a judicial tribunal had all the power that this House could exercise in any criminal case, and more than they had in this, he should vote against every resolution going to express a conviction that this House had any power or right whatever to act on a subject solely within the constitutional right of the Executive or Judiciary.

Mr. RANDOLPH said, if the gentleman who had just sat down had not given his hasty impressions, but left his good understanding free to operate, his objections to the resolution would have vanished. The great mistake made by every gentleman who opposed this measure on constitutional grounds, was this: that they looked upon an inquiry made by this House, through the organ of one of its committees, as leading to the punishment of the individual implicated, and that where this House was not competent to inflict punishment, it was incompetent to make inquiry; this was the great stumbling-block, which had impeded their apprehension. But he would ask the gentleman from Massachusetts whether this House was not competent to make an inquiry for its own legislative guidance? Was it not competent, as well in its capacity of supervisor of the public peace, as to obtain a guide for its own actions, to inquire into this matter? Was not the House clothed with the power of disbanding the army? Now, suppose a committee of the House, upon inquiry, were to report, perhaps, that not only the Commander-in-chief, but the whole mass of the army, were tainted with foreign corruption, or were abettors of domestic treason, could any man assign to himself a stronger reason than this for breaking an army on the spot? Did not the gentleman know, or rather did he not feel, that this House had the right of refusing the supplies necessary for the army? And could a stronger reason be given for a refusal to pass the military appropriation bill than that they were nourishing an institution which threatened our existence as a free and happy people? Let me, if it is in order, ask the gentleman from Massachusetts to turn his attention to the proceeding of which we have official notice in another branch of the National Legislature, an inquiry into the conduct of one of its own members. Did they not all know that that man’s offence was punishable by a civil tribunal? But the inquiry was not there made with a view to a trial, not to usurp the powers of the judiciary, but to direct that body in the exercise of its acknowledged legislative functions. Inasmuch as they possessed the power to expel one of their own members, to amputate the diseased limb, they possessed the power, and exercised it, to make an inquiry. Now, the gentleman from Kentucky had just as much right to institute an inquiry which might lead to the exercise of the legislative powers of this House, which might cause the disbanding of the present army, the erection of another, or the refusal of supplies, as to institute an inquiry into the conduct of a member with a view to his expulsion, or of an Executive officer, with a view to impeach him before the Senate.

Mr. R. therefore presumed that any inquiry which this House might choose to make into the conduct of any officer, civil or military, was not an interference with the powers of any of the co-ordinate branches of Government; they were left free to move in their own orbits. If a crime had been committed against the statute law of the United States by such officer, the judiciary were as free to punish it as it was free to punish a member of this House, into whose conduct, upon suspicion of treason or misdemeanor, inquiry had been made, with a view to his expulsion. The Executive likewise was left free to exercise his discretion; he was left free to dismiss this officer, to inquire into his conduct himself, either with his own eyes or ears, or by a military court; to applaud, or censure.

Did they take possession of the body of this officer by an inquiry into his conduct? Did they interfere with the court of inquiry now on foot, but totally incompetent to the object? Gentlemen, indeed, had said, that if that court did not possess the power of compelling the attendance of witnesses, we might clothe it with that power. In expressing this opinion, the gentleman from Massachusetts had not been more considerate than in expressing his first opinion. Could any one conceive a more dreadful or terrible instrument of persecution than a military court, clothed with the power to coerce the evidence, and the production of papers of private citizens? Clothe them with this power, and there is not a man in the United States who may not be compelled to go, at whatsoever season, to the remotest garrison, on whatsoever trifling occasion, at the will of a court martial, or a court of inquiry, leading to the establishment of a court martial.

In the course of the present year, Mr. R. said it had been his lot to receive, from no dubious or suspicious source, information touching, not, to be sure, the immediate subject on which an inquiry had been moved by the gentleman from Kentucky, but one intimately and closely connected with it. He meant the project, through the instrumentality of the Army of the United States, to dismember the Union; and he had no hesitation in saying--and it had been the opinion of a large majority, if not of every one of those of whom he had been a colleague--that the Army of the United States was tainted with that disease; and that, so far from the Army of the United States having the credit of suppressing that project, the moment it was found that the courage of that Army had failed, the project was abandoned by those who had undertaken it, because the agency of the army was the whole pivot on which that plot had turned! This was in evidence before the grand jury, who had the subject in cognizance last spring. He said that these conspirators were caressed at the different posts of the United States, in their way down the river, and by officers of no small rank, that they received arms from them, and the principal part of the arms these men had with them was taken from the public stores; and under a knowledge of these circumstances, was he not justified in the belief that the whole Army of the United States was connected in the project? He did not mean every individual, for there were some who could not be trusted, and some who were at posts too far distant to be reached. That those who were confidants of the Commander-in-chief were interested in the conspiracy, no man who knew any thing of the circumstances could doubt. He, therefore, thought that the resolution moved by the gentleman from Kentucky was every way reasonable. Indeed, he did not know whether the resolution should not be so varied as to embrace not only a charge of that nature, but all whatsoever.

Before he sat down, he should have it in his power to give to the House something certainly very much resembling evidence in support of the justice of his suspicions on this subject. On the 26th of January last, the House would perceive by the Journals, a Message was received from the President of the United States, “transmitting further information touching an illegal combination,” &c., printed by order of the House, and which he now held in his hand. In this Message is contained the following affidavit:

“I, James Wilkinson, Brigadier General and Commander-in-chief of the Army of the United States, to warrant the arrest of Samuel Swartwout, James Alexander, Esq., and Peter V. Ogden, on a charge of treason, misprision of treason, or such other offence against the Government and laws of the United States, as the following facts may legally charge them with, on the honor of a soldier, and on the Holy Evangelists of Almighty God, do declare and swear, that in the beginning of the month of October last, when in command at Natchitoches, a stranger was introduced to me by Colonel Cushing, by the name of Swartwout, who, a few minutes after the Colonel retired from the room, slipped into my hand a letter of formal introduction from Colonel Burr, of which the following is a correct copy:

“‘PHILADELPHIA, 25th July, 1806.

“‘DEAR SIR: Mr. Swartwout, the brother of Colonel S., of New York, being on his way down the Mississippi, and presuming that he may pass you at some post on the river, has requested of me a letter of introduction, which I give with pleasure, as he is a most amiable young man, and highly respectable from his character and connections. I pray you to afford him any friendly offices which his situation may require, and beg you to pardon the trouble which this may give you.

“‘With entire respect, your friend and obedient servant,

A. BURR.

“‘His Exc’y GEN. WILKINSON.’

“Together with a packet, which he informed me he was charged by the same person to deliver me in private. This packet contained a letter in cipher from Colonel Burr, of which the following is, substantially, as fair an interpretation as I have heretofore been able to make, the original of which I hold in my possession.”

Mr. RANDOLPH said he should certainly have abstained from noticing the circumstance he was about to mention, and which he had believed to be of general notoriety, had it not been that within a very few days past, a gentleman, (with whom Mr. R. was in habits of intimacy, and whose means of information were as good as those of any member of the House,) to his utter surprise, informed Mr. R. that he was totally ignorant of the fact.

Mr. R. said he held in his hand an actual interpretation of this ciphered letter, which was made in the grand-jury room at Richmond, by three members of that body, for their use, and in their presence; and it was necessary here to state, that so extremely delicate was General Wilkinson, that he refused to leave the papers in possession of the grand jury: whenever the jury met, they were put into their hands, and whenever they rose, the witness was called up, and received them back again. Here was a copy--rather a different one from that which, “On the honor of a soldier, and on the Holy Evangelists of Almighty God,” was as fair an interpretation as General Wilkinson was able to make. A comparison of the two would throw a little light on the subject. In the printed copy of the last session might be read, “I (Aaron Burr) have actually commenced the enterprise--detachments from different points,” &c. In the original the words had been scratched out with a knife, so as to cut the paper--“I have actually commenced”--not the enterprise, but “the Eastern detachments.” Now mark; by changing the word Eastern into enterprise, and moving the full stop so as to separate Eastern from its substantive detachments, the important fact was lost, that, as there were Eastern detachments under Colonel Burr, there must have been Western detachments under somebody else! Now, with a dictionary in his hand, could any man change “Eastern” into “enterprise,” and move the full stop, under an exertion of the best of his ability? Again: the printed copy says, “every thing internal and external favors views;” the original has it “favors our views.” The word “our” perhaps could not be found in any English dictionary! The printed version says again, “The project [this is the best interpretation upon his oath which a party who had never suffered the papers to go out of his hand could make] is brought to the point so long desired.” The real interpretation is, “the project, my dear friend, is brought to the point so long desired.”

Mr. R. said, exclusive of other and direct evidence, tending to show the dependence which these conspirators put on the army of the United States, and that it was eventually their sole hope and support, and that the moment they found they were to be deprived of it they changed their purpose--exclusive of this, and that the conspirators were received at Massac and the other forts below, and of their there getting arms and stores, there was something in this suppression of words in the letter that spoke to his mind more forcibly than volumes of evidence, the implication of a man who, had he been innocent, would have given all the evidence in any letter he professed to interpret. This suppression did certainly convey to the mind of Mr. R. an impression, which he had never attempted to conceal, of the guilt not only of the principal but of many of the inferior officers of the Army. But guilt is always short-sighted and infatuated. Not content with that dubious sort of faith which it might sometimes acquire when not brought to the trial, it had attempted not only to occupy the middle ground of doubt and suspicion, but to clothe itself with the reputation of the fairest character in the country, and in so doing, had torn the last shred of concealment from its own deformity. It stood now exposed to the whole people of the United States; and he left the House to say whether they would shut their eyes and ears, as they had been almost invited to do, against conviction.

Mr. SMILIE wished to know of the gentleman from Virginia whether there was not a motion before the grand jury to find a bill against General Wilkinson?

Mr. RANDOLPH said he had introduced this subject in order to suggest to the gentleman from Kentucky the propriety of modifying or amending his resolution. He would now give the information required by the gentleman from Pennsylvania, and hoped he should not be considered as intruding on the time of the House in so doing.

There was before the grand jury a motion to present General Wilkinson, for misprision of treason. This motion was overruled upon this ground: that the treasonable (overt) act having been alleged to be committed in the State of Ohio, and General Wilkinson’s letter to the President of the United States having been dated, although but a short time, prior to that act, this person had the benefit of what lawyers would call a legal exception, or a fraud. But, said Mr. R., I will inform the gentleman, that I did not hear a single member of the grand jury express any other opinion than that which I myself expressed of the moral (not of the legal) guilt of the party.

Mr. SMILIE said he would not detain the House on this subject; he had the other day taken an opportunity to state his sentiments on the subject, that in his opinion there was no power in the House to proceed in the business. The same sentiments he yet entertained; and when gentlemen told him that it was necessary for the public safety that this House should exercise such powers, and at the same time they could not point out a single expression in the constitution vesting the House with this power, he could not consent to vote with them: nor had a single gentleman who had spoken, attempted to show that they did possess these powers. The gentleman from Virginia had spoken of their power to disband the army; if the gentleman chose to bring forward a resolution for that purpose, Mr. S. said he would meet him. He had also told them that they had a power to refuse supplies: Mr. S. said he agreed with the gentleman in this: but when they stepped out of the road, and assumed a power not vested in them, he could not go along with the gentleman. Was it not the duty of the President alone to inquire, who possessed full power to act on the information which might be the result of an inquiry? Certainly it was. The officer interested in this discussion was undoubtedly subject to trial by a court martial, and no doubt also by a court of justice; for if he was guilty of the crimes laid to his charge, they were of a high nature, and would subject him to the cognizance of the civil law.

But he would ask gentlemen, if they succeeded in passing the resolution upon the table, what was next to be done? Did the House believe that they could remove or punish a military officer for misconduct? If they could not do this, and he presumed no gentleman would contend for this, Mr. S. could see no reason for an inquiry. Were they to become mere juries for a court of justice--mere collectors of evidence--for it was admitted that they could not act upon it after it was collected? He believed the courts of justice were possessed of sufficient authority without this House volunteering their assistance.

Mr. S. remarked what would be the effect of this motion, which was substantially the same as that proposed by the gentleman from New York, and rejected by a large majority. It would answer the purpose of holding up this man to suspicion for years to come, for aught he knew, without producing any other effect. He was willing to inquire; he had seen from the beginning of the business that an inquiry must take place. There had been a number of papers laid upon the table relative to this; he was willing to transmit them to the proper department, there to be made use of, and he hoped the House would go no further. For in regard to the proceedings which had taken place, they had exercised a right which did not appertain to them in proceeding in the business at all; they had no right to beset the character of the man; and he rested his objections on this point, that no man could show him an authority for it. He was very sorry, because he thought it would produce effects of a serious nature, to hear a gentleman this day denounce the army as corrupted throughout. He must tell that gentleman that he could not credit the assertion. They had tried (without meaning to express any opinion as to the officer now involved) their officers and found them trusty. And to hold them up as unworthy of trust at this time, in a crisis like the present, was impolitic and unjust. If gentlemen knew of any particular officers who were corrupt, why could and did they not lodge information against them, not by clamor here, but by proof before the proper authority?