and resting on evidence which the law excludes, ought to be dismissed. Standing, however, as my client does, strong on the facts, holding in my hand abundant proof of his innocence, I shall by no means rest his defence on this legal ground, impregnable as I deem it; but having entered in his name, and in my own as one of the American people, this protest against a proceeding which I regard as a violation of our constitutional privileges, I now proceed to investigate the evidence adduced in support of the charges against Mr. Smith, and to contrast it with that whereby his innocence is completely established. I am to premise that the charge against Mr. Smith is, that he was connected with col. Burr in the late conspiracy. This connexion is alleged as the sole ground of expulsion; and it is attempted to be proved in various ways. 1. By the conversation stated by Elias Glover and M'Farland. 2. By the facts stated by Peter Taylor. 3. By the conversation stated by major Riddle. 6. By the bill drawn by col. Burr on Mr. Smith, in favour of Jacob Jackson. 7. By that drawn on him by col. Burr, in favour of Belknap. 8. By a supposed contradiction between Mr. Smith's statement respecting the settlement of the Washita lands, in his deposition before Matthew Nimmo, and the facts which appeared in evidence at Richmond. And 9. By a supposed similarity between the style of the conversation stated in Glover's deposition, and that of Mr. Smith's own deposition before Nimmo. By some of these proofs and circumstances, or by all of them taken together, it is contended that a criminal connexion between Smith and Burr in the late conspiracy is established; and it is therefore incumbent on me to consider them all; which I shall proceed to do in the order in which they have been stated, and with as much brevity as the extent and variety of the matter will admit. [The remainder of this speech is distinguished for that ingenuity and cogency of argument which characterizes this able advocate. But as it is confined to an examination of the testimony, and is therefore no further interesting than as it regards this particular case, it is omitted.] LIBEL. ON Tuesday, 25th October 1808, came on to be tried at a circuit court, held in the city of Albany before Mr. justice Spencer, the action commenced by Abraham Van Vechten, late recorder of that city, against David J. Hopkins, for the following libel, to wit: I "State of New-York, ss. City and County of New-York. HENRY MEIGS, notary public in and for the state of New-York, duly commissioned and sworn, do hereby certify, that personally came and appeared before me, David J. Hopkins of Morristown, New-Jersey, lately from the college of Middlebury, state of Vermont, who being duly sworn by me saith, that sometime in March or the beginning of April 1806, he went to the office of Abraham Van Vechten, esq. in Albany, in company with major John Lansing; at the said office there arose some conversation between major Lansing and Mr. Van Vechten, in the course of which major Lansing made several severe remarks upon the political character of governor Lewis; in consequence of which remarks. Mr. Van Vechten said to him, these severe remarks and animadversions which you have made respecting governor Lewis will not do; for we have agreed to support him at the ensuing election. Mr. Van Vechten then produced a written instrument, which he put into the hands of major Lansing, who read it; major Lansing then laid it down on the table, and went into conversation with Mr. Van Vechten. This deponent, while these gentlemen were conversing, turned over said instrument of writing, which purported to be an agreement containing articles of coalition. The first was an engagement by several leading federal men, whose names were thereto subscribed, to support with all their strength and influence the next election of governor Lewis. In consideration of this federal article of agreement, there was an article stating the friends of governor Lewis, whose names were thereto subscribed, should exert all their power and influence to cause the election of S. Van Rensselaer, esq. to the office of governor in the gubernatorial election of 1810. This deponent believes that there were as many names subscribed to the said agreement as fifteen or twenty,principally quid and federal members of the legislature; that this deponent being on terms of intimacy with Mr. Lansing, had frequent conversations with him after the circumstances above stated had taken place, and in these conversations this deponent often heard major Lansing explicity state, that the coalition between the friends of the governor and the federal party was the only way and means of again restoring the federal party to power; and that the federal party was assured of the support and influence of the Livingston family for the same object above mentioned. DAVID J. HOPKINS. When, after proving the making of the libel, and its publication with the knowledge and consent of the defendant, and that the plaintiff was the only person of the name of Abraham Van Vechten resident in Albany, and that he kept an office there, and was at the time of making the said libel recorder of that city; and that he also was a member of the legislature in the months of March and April 1806, the plaintiff offered a witness to prove, that from the perusal of the libel itself, he considered Mr. Van Vechten to be one of the federal members of the legislature intended as a subscriber to the corrupt agreement charged in the libel, which testimony was overruled by the court, upon the ground that it was a mere construction of law to be deduced by the court from the libel, without the aid of any extrinsic testimony, who was the person intended: and his honour the judge thereupon further decided, that it was not legally to be inferred from the libel that it had any application to Mr. Van Vechten. To this opinion the plaintiff's counsel excepted; and its correctness is to be decided either upon a writ of error, or upon a case to be brought before the supreme court. District Court of Pennsylvania. SEPTEMBER 9th, 1808. Embargo. The United States of America v. the Schooner William and Samuel, Joseph Lopes, Master, and her Cargo. Present, PETERS, Judge. HIS was by a libel filled by Mr. Dallas, the district attor THIS ney, against the schooner William and Samuel, and her cargo, captured by lieutenant Biddle of the navy, for a breach of the laws relating to the embargo. The libel contained a variety of counts; and the vessel was claimed by Jacob Clarkson and Samuel Lowth, the owners; but no claim was filed for any part of the cargo. The claim alleged, that the vessel had been chartered to Joseph Burr; that she had received permission from the president, to proceed from Philadelphia to the Havanna for American property; and that the cargo was put on board, without the privity or approbation of the owners. The vessel, however, clandestinely took in goods, while in the port of Philadelphia, to a value exceeding 5000 dollars. Samuel Lowth, one of the owners, sailed in her as a passenger, according to the entry in the manifest; and when she was seized by order of lieutenant Biddle, after she had left the district of Pennsylvania, but still in the river Delaware, her hatches were battened down, &c. Messrs. Ingersol, Hallowell and Milnor, were counsel for the claimants, and upon mature consideration, agreed to the condemnation of the vessel upon the last count of the information, which stated that goods exceeding the value of 400 dollars had been ladened on board without a permit from the proper officers. The cargo was condemned; no claim being filed, nor any objection made; reserving for the opinion of the court, the question whether the goods shipped under a permit were liable also to forfeiture. The United States v. the Schooner Polly and Nancy, John Russel, Master, and her Cargo. This libel was filled by Mr. Dallas, the district attorney, against the schooner Polly and Nancy, John Russel, master, a British owned vessel, and her cargo, seized by the collector for a breach of the laws relating to the embargo, by taking on board prohibited goods. Mr. Hopkinson appeared for the master, who was also the owner of the vessel; alleged that the illegal act was committed without the knowledge or approbation of his client; but submitted to the condemnation of the vessel and cargo, excepting the sea stores and provisions. After hearing Mr. Dallas, on the one side, and Mr. Hopkinson, on the other, the court decided that upon general principles, as well as upon the particular words of the 5th section of the act of the 9th of January 1808, the sea stores and provisions could not be considered as a part of the cargo, liable to forfeiture. The United States v. the Sloop Two Friends, Baptiste Genanty, Master, and her Cargo. Mr. Dallas filed a libel against the sloop Two Friends, a French owned vessel, and her cargo, seized by the collector, for a breach of the laws relating to the embargo; and process of monition was ordered to issue in due form. |