words of the statute are to be construed with reference to that law. It would be a sufficient answer to that argument to say, that a war de facto is recognised by the law of nations; but further, I beg leave to dissent from the opinion that this statute is declaratory of that law, although the assertion has proceeded from an authority which I highly respect. By looking at the statute, it will be found to have been originally enacted for only two years; the limitation of its duration shows that it was not intended to be declaratory of the law of nations; for that law is perpetual, and does not require to have its meaning declared every second year. The object of the act is not declaratory, but to create and describe a crime and to annex a penalty to its commission. The argument drawn from that assertion, I think, therefore, fails on every ground, and that we ought to be permitted to give the president's message in evidence of outrages committed by Spain on our frontiers, and her depredations on our commerce; whether they amount to war de facto will be matter of consideration for the jury; but we have a right to show, if we can, that the relation of peace was broken by Spain; that she carried on hostilities, violated our territories, and waged war upon our trade. Permit this to be shown, and she will not appear to be a nation at peace with us; nor will the absurdity be maintained, that we were at peace with her, when she was at war with us.

Harison. I presume that if there is any principle in our law, certain and incontrovertible, it is that in all criminal cases the jury are the judges of the law, as well as of the fact. And from this principle it follows, that no question purely of law can arise, connected with the guilt or innocence of the defendant, which is to be considered as exclusively belonging to the court, and not within the cognizance of the jury. For if, as to certain propositions so connected, the court can pronounce that by law either the affirmative or the negative is to be considered as existing, and exclude the evidence relative to that proposition, it will result, as an inevitable consequence, that they can limit and confines the province of the jury within such bounds as they themselves shall deem proper. They can assume the several propositions and controul the verdict according to their pleasure. In the determination of this cause, the question of peace or war is of primary importance; because, to establish the guilt of the defendant, it must appear that the expedition was against a nation with whom the United States was at peace. Such is the express declaration of the statute. It is therefore "a turning point," to be determined by the jury whether we were at peace with Spain when the offence is supposed to have been committed; and if the jury are to determine it, they must have every species of evidence that is fit to demonstrate the actual situation of affairs between the two countries.

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In opening this cause to the jury, the district attorney seems to have been fully convinced of the doctrine for which I am now

éontending. He then informed the jury, that the fourth point which he should establish would be that this country was at peace with Spain, when the offence was committed, which is charged in the indictment.

At this time, however, he insists that this is a mere point of law, about which the court only is to judge; without reflecting that the great maxim I have already noticed would be violated by his doctrine; and without considering, that in relation to this point, legal inferences can only be deduced from facts antecedently appearing. In criminal cases, it cannot be proper for the court to assume the fact, and determine the law. They cannot tell the jury, this country was at peace. Such is the law; and you are to determine the guilt or innocence of the defendant upon that supposition. If the court could do this, the power of the jury in criminal cases would indeed be feeble, and very different from what we have supposed.

But, admitting that the question of peace or war may be proper for a jury, we are told that no war can exist without a declaration by congress. Consequently, that no evidence but the act of congress can be received, to demonstrate the existence of a war between this and any other country.

The federal constitution has, indeed, provided that "the congress shall have power to declare war ;" and thence it is inferred that war cannot exist without such declaration. But surely, this provision of the constitution can only relate to cases where there is an option to embrace the alternative of peace or war; and it by no means implies that a formal declaration is essential to the existence of actual warfare.

If the enemy commences the attack, we may appeal to arms immediately, and without any ceremony. The state of peace is no longer in being; and from the very instant that the aggression takes place, the two contending powers, by the law of nations, which is founded upon the law of nature, are to be considered as enemies.

Even allowing then, that as to offensive war on the part of this country, the doctrine of our opponents would be correct; yet it should be remembered that there is a defensive, as well as an offensive war; and that the state of peace or war between two countries implies reciprocity. Both must be at peace, or both will be at war. So that, if a foreign country should declare war against the United States, or attack their territories, or commit acts of open hostility and aggression, this country would be in a state of actual warfare, without a declaration of congress upon the subject.

If any doubt could be entertained whether to constitute a war in such cases, it is necessary that there should be a precedent declaration, I could refer the court to the most approved writers upon the law of nations; to Grotius, Puffendorf, Barbeyrac, Vat

T

tel, and others; all of whom (whatever may be the discordance of their opinions as to the necessity of declaring war when it is inits nature offensive) agree in the sentiment that under such circumstances as I have already stated, no rule of the law of nations would be violated, if war should be carried on without being declared.* I might add that the constitution itself has contemplated a case in which war may exist without any declaration of congress; where a state may engage in it, though not invaded, if in such imminent danger as will not admit of delay.

The question, then, as to the state of our peace, must depend upon a variety of circumstances, and may be made evident to the jury by a variety of proofs. In the case of offensive war, the declaration of congress could be resorted to; and where the war commenced by the acts of aggression of the enemy, the acts might be proved in the same manner as every other fact of great notoriety.

If then this country might have been actually at war with Spain, without any declaration of congress, it will only remain to show that the President's message is proper evidence to establish the fact. Here I must observe to the court that, by a particular provison in the constitution of the United States, it is made the duty of the president, to give congress information, from time "to time, of the state of the union." Hence, his official communications to the legislature, must be considered as stamped with the character of truth, and carrying in themselves the most irrefragable evidence of those facts which they relate. The state of the union depends, not only upon its internal circumstances but also upon its situation with respect to foreign powers; and when the chief magistrate of the union exhibits to the congress a state of facts, there can be no higher evidence to establish their existence, and the consequences that result from them.

The court will no doubt recognize the presumption of law, that all magistrates execute their duty with fidelity; and this presumption shall prevail until the contrary is shown. But if such a presumption exists as to the ministers of justice and subordinate magistrates of the country, it must apply, with much more force, to him who is invested with the highest dignity, and most important trust. It would be indelicate to suppose that he had deviated from the truth, and it would require the most convincing proofs to establish the fact.

We hope, therefore, that the president's message will be admitted in evidence for the consideration of the jury; and we trust

* Vide Bynk. Quest. publ. Jur. lib. 1. cap. 2. Vattel, lib. 3. cap. 6. sect. 57. Grot. de Jur. B. et P. lib. 3. cap. sect. 6. Puff. de Jur. Nat, and Gent. lib. 8. ch. 6, and the notes of Barbeyrac. Heineccius Systema Juris, b. 2. ch. 9. sect. 197 and Hen. Cocceii et Sam. L. B. Cocceii, Com. ad Grotium. Vide etiam Nolfii Jus Gentium, cap. 6. sect. 713.

wiil convince them that the United States were not at peace with Spain, as is alleged in the indictment.

One objection, however, still remains to be noticed. It is said the present questions have been determined by the decision of the court, upon our application to compel the attendance of witnesses. But I do not think this is the case. If I am not mistaken, the court mentioned that if the United States were not at peace with Spain, the defendant could not be guilty; and that the affidavits produced by the defendant, did neither allege the existence of a war on the part of the United States, or that the witnesses could prove it. As far as the language of the court then went, according to this statement, it seems to imply that the question of peace or war was open for discussion; but as we did not allege the materiality of the witnesses to prove the state of warfare, the court could not defer the trial on account of their absence. We were certainly under no necessity at that period of the cause to allege the state of warfare, for any other purpose but to obtain the attendance of those witnesses. If we did not judge it proper to make the allegation for that purpose, still we have a right upon the trial, to avail ourselves of the defence, and if permitted to do so, it will be a complete justification.

Sanford. I shall be extremely brief in reply to the arguments of the gentlemen who have dilated so much upon the point now before the court.

The authority cited to show that the gazette is proper evidence to go to a jury, is inapplicable until a previous question shall have been decided. The question immediately before the court, and which I apprehend must be first decided, is whether the defendant can be allowed to offer any evidence whatever to the jury, to show that the United States were at war with Spain. If it shall be decided, that the defendant is entitled to give evidence to the jury, to show a state of actual war, an ulterior question may then arise, whether the gazette, or whatever else may be offered is proper evidence for that purpose. I shall, therefore, entirely abstain from a discussion of the latter question, and shall return to our former proposition on this subject, which is, that the question of peace or war under this statute, is a question of law to be decided by the court, and not a question of fact to be decided by the jury. If then, this be the point which is now presented to the court, I conceive that it has already been very fully discussed, and has already received the decision of this court. The adverse counsel are pleased to say, that they did not understand that this point was before decided. They surely have not so soon forgotten that this very argument was discussed upon the argument of the motion for a postponement, and for attachments. Did they not there urge, that the testimony of their absent witnesses was wanted for the purpose of establishing a state of actual war? And was not their whole train of reasoning upon this subject,

the same that has now been urged? The opinion of the two judges, as I understood it, was, if not in terms, at least by necessary consequence, that the question of war or peace under this statute, is a question of law exclusively for the decision of the

court.

[Here he recited some parts of the opinion, for which vide ante pages.]

This opinion, however, is not now before the court, and I can only cite it from memory. I will, therefore, rapidly recapitulate the reasons upon which we contend that the question of war or peace is in this case exclusively a question of law.

The high power of making war, is vested by the constitution, in the legislature alone. This provision of our constitution, is evidently the result of that jealous spirit of liberty, which pervades the people of this country. The power of making war, so important to their interests, and if abused, so dangerous to their liberties, could not, consistently with that spirit, be vested else, where than in the whole legislature.

It follows, that under our constitution, the only evidence of a state of war which can be recognised by the courts, is the act of the legislature declaring it; for until the legislature has declared war, the nation is constitutionally and legally at peace. This consequence seems plain and undeniable. But the adverse counsel say, that war may exist in fact, though not declared by congress; that war may exist by the actual commission of hostilities, or may take place by the actual invasion of our country. They then ask, is not this war? And may not individuals, in such a state of things, undertake military entei prises against the offending nation without incurring the penalties of this statute? I an, swer, certainly not. I concede that the state of things which exists when the country is invaded, or actual hostilities take place, may in a certain sense of the term, be denominated war, and the counsel opposed to us, concede that war may exist by the declaration of congress, though no invasion or hostilities should have taken place. We find then, that we are here using the words

war and peace in different senses. Our opponents talk of actual war, and we speak of war declared by congress. The question between us then, comes to this inquiry; in which of these senses have the legislature used the word war, or its correlative peace in this statute?

Without urging other topics in support of our construction, a very slight attention to the consequences of the opposite doctrine, will be sufficient to show that the word peace is used to indicate that state of things which exists, when the nation has not declared war. Actual hostilities may take place by the irregularities or violence of individuals, cr if the counsel please, the United States may be invaded, and yet the legislature may suppose that the best interests of the country require it not to de