The plain meaning of this law is that while the United States are at peace, no person shall be allowed to make preparations in their territories for war against foreign nations. I cannot but feel confident that you will give it effect according to its true sense and spirit.

I proceed to the agency of Smith, the defendant, in this expedition. It is enough if he either began it or set it on foot, or prepared the means as charged in the indictment. Did he begin the expedition? Upon this point his counsel say there is no evidence against him. They ask who began the expedition, and they answer Miranda. This is not so upon the evidence before you.— Miranda conceived the project, and formed the design, but the beginning of the expedition must be something different from the conception of the project. The imaginations of Miranda did not constitute an expedition nor did they begin it in the sense of this law. Our law punishes no inan for his thoughts. The beginning of the expedition in the sense of this act is the first overt act performed by any one of those who had embarked in the project for the purpose of carrying it into effect. If this be the true idea of commencing the expedition, then Smith began it. It appears that he took the first and most essential step in the enterprise. He informed Miranda of a ship proper for his purpose, introdu ced him to Mr. Ogden, the owner of the Leander, and facilitated the contract for the charter of the ship. This appears to be the first open act in the affair, and is therefore the beginning of the expedition. If this had not happened the expedition might never have taken place. But whatever may be considered the commencement of the expedition, Smith's agency in it may properly be called setting it on foot. It appears that throughout, Smith did every thing in his power to promote it. Colonel Flatt states that Smith procured such means as Miranda wanted. His aid in procuring the ship, the enlistment of men by himself and his agents, the payment of money to the men enlisted, and every step taken by colonel Smith in the progress of the affair are all acts of setting on foot the expedition; for they all tended to bring it to maturity, to give it its military character, and promote its ultimate object, and without them it might have been abortive.

The indictment however, presents a more precise charge against colonel Smith. It alleges that he provided as means for this expedition thirty men, and three hundred dollars in money. If I do not exceedingly deceive myself this charge is established by the testimony beyond the possibility of doubt or contradiction. Fink swears positively that he enlisted about twenty men by Sinith's direction and as his agent, and his testimony is confirmed by the testimony of several of the men enlisted, and by the muster roll and other papers produced and proved. Doctor Douglass testifies that Smith himself engaged about twelve or fourteen men for the same service. Here, then, is the most sa

tisfactory evidence that Smith provided more than thirty men for the expedition. But his counsel say that these could not be men for a military enterprise, that they were unfledged fellows, who had not been drilled, and had never seen service. Really, gentlemen, the counsel must think too well of your good sense to expect to convince or persuade you by observations like these. If the expedition was military in its nature, which I think has been sufficiently proved, and the men were engaged for its service, it is sufficient to constitute the offence. The counsel might as well have told you that the men were too tall or too short for soldiers as to urge such objections.

Another objection is, that the men enlisted had an option to continue in the service or leave it ; and this is called a civil contract for service. Be it so, for the sake of argument; and what then? They were still provided by Smith as means for the expedition, and while they were on the land, and at liberty, could not have been provided in any other way than by a voluntary contract on their part. The civil contract, as the gentlemen have called it, therefore, does not help them; for the men engaged by Smith, under that contract, were provided by him for the expedition, in the true sense of the law. Was this the less so, because they had an option to return? I conceive not; for the same answer recurs. They were provided for the expedition, and thereby the offence was complete. An option which might never be exercised could not alter the nature of the offence.

But, in truth, what was this civil contract, and this option to leave the service of the expedition? It was, gentlemen, merely a decoy, a contrivance, to kidnap and entrap these young men and boys on board of the ship, where they were effectually secured and compelled to proceed in her. After they had been allured on board by this artifice they were not permitted to return. This fact appears from the testimony of Rose, who was himself desirous to leave the ship while she lay at Staten-Island, but was not permitted to come away. The bait thrown out was according to the taste of the gudgeon. Some were told that they were to go to Washington to form a guard for the president, and others were to guard the mail; but all were assured that they were enlisted for the service of the United States, and were not to go out of their territories. But after they were on board, and the ship had proceeded to Staten-Island, no one was permitted to leave her; and no more was heard of an option to return. But, say the counsel, they had an opportunity to leave the ship when they landed at Aruba. This was, indeed, a most desirable dilemma; either to remain destitute and friendless on a little island in the ocean, or to reimbark with their comrades, and follow the fortunes of the expedition.

I consider it then established as a fact to your satisfaction, that colonel Smith provided thirty men for this expe-lition.

It is also alleged that he provided money for the same purpose. This is proved by Fink, to whom Smith paid three hundred and ten dollars or about that sum as the amount of pay to be advanced to the men enlisted by Fink; and Fink by Smith's direction paid the money to the men. This is proof positive and sufficient that Smith provided three hundred dollars in money for the expedition as charged in the indictment. Even his own counsel have passed over this part of the testimony in silence. It was wise in them not to touch it. It was too tough for them. It could neither be perverted by sophistry nor obscured by eloquence. If there were no other evidence of Smith's agency in the affair, this alone would be sufficient, and must convict him.

Colden. There is a mistake. I contend that the men were not military men, nor was the money applied to military purposes. It was simply to engage them for a passage.

Emmet. I said that the contract which was made by Fink was annulled by another engagement made by Durning.

Sanford. The money was applied to the purposes of the expedition, and to one of its most important purposes, the engagement of men for its service. If the contract had been completely annulled, as is pretended, that circumstance could not alter or affect Smith's offence, if he had committed one by enlisting the men in the first instance. That he did enlist the men is indubitably proved. His offence, then, would still remain complete and undiminished. But what is called the annulling of the contract, appears to be, in fact, nothing more than a change of officers on account of a change of circumstances. The men had been originally enlisted to serve under Smith's son as their captain. He was promoted to the situation of aid-de-camp to Miranda. Durning then succeeded to the command of the company and the men made a new engagement with him as their captain.

The fourth point of inquiry is, whether the United States and Spain were at peace at the time when these facts took place. If they were not at peace, I concede that no offence could be committed against this law. This expedition was prepared in this city in the month of January last, and the question therefore will be, whether the United States and Spain were at peace at that time. To state this as a question, to argue concerning it as a doubtful point, must surely excite astonishment in the minds of all who have heard this trial. If the question were put to any citizen of the United States, to any subject of Spain, or to any well informed man in Europe, whether the United States and Spain were at peace or at war in January last, what would be his answer? Is there any such man who would not answer that they were at peace ? I cannot bring myself to believe that you have a doubt upon this point. But still it has been asserted to you with all gravity by the defendant's counsel, that we were not then at peace but were at war with Spain. It may therefore seem to be my

duty to attempt to answer them. You have already heard much discussion upon this point addressed to the court, and you have also heard its decision. According to the opinion of the court, the United States and Spain were at peace; and this having been decided as a question of law you will probably think it your duty to acquiesce in that decision. If however you should be disposed to examine the grounds of that decision, I trust that you will find them correct and conclusive. We contend, that under our constitution, the legislature alone has the right of making war, and that until they declare war peace exists in the true sense of this law. It is in vain to talk of cases of defensive war or actual hostilities. Any acts of violence by people of different nations may, in a lax sense of the term, be denominated war; but that war which dissolves the obligations of peace and authorises individuals to carry on hostile expeditions against a foreign state, can only take place under our constitution when' congress declare it. But without repeating ideas which have been already often urged, I will now meet the counsel, for the sake of argument, on their own ground. Their doctrine is, that the question of peace or war is a question of fact that you have a right to decide it in this case from what they call public documents and notorious facts; and they then assert that in point of fact the United States and Spain were at war. To support this assertion, they refer to the president's message to congress at the commencement of the last session, and the proceedings of certain Spanish officers and troops on the southern frontier of the United States. These show, as they contend, that the Spaniards had invaded our territories and plundered our citizens and they ask with exultation, is not this war. Let it then be fairly examined as a mere question of fact. It is first to be observed that these inroads of which the counsel so feelingly complain, all happened long before this expedition took place. This expedition was prepared here in January last, and the outrages committed by the Spaniards on the southern frontier happened in August, September, and October last. If therefore, their argument prove any thing it proves altogether too much. If we were at war with Spain in January, in consequence of events which had happened some months before, we are at war with her

now.

Emmett.

Colden. cuments.

Undoubtedly.

We have not taken notice of the message or the doThe public prosecutor is taking advantage of them. If we had been permitted to give them in evidence that circumstance would have given rise to a variety of observations we had to make; but our right of defence is gone by, it is new matter which the counsel has no right to use. Had we been permitted to speak on that point it is not the case of the Kempers to which we should have confined ourselves. We should have gone to our commerce, to the affairs of St. Domingo and Hispaniola. We should

have remarked on the case of Flanagan, and a variety of other points which we have not touched.

TALMADGE J. I understand the district attorney as commenting on the documents accompanying the message as matters of notoriety. If he goes beyond that he will be out of order.

Colden. I would have made a different address from the one I did to the jury if I had been permitted to refer to the docu

ments.

Sanford. It is true that the defendant was not allowed to give the message and documents in evidence; but it is equally true that his counsel were permitted to comment upon what they called the notorious facts contained in them without any restriction. I merely follow their example and I think it quite impossible to go beyond it. They insisted that they had a right to comment upon notorious facts, they spoke of the events to which I now allude as notorious, and commented upon them at length and without restriction. I mean, only for the purpose of meeting their own arguments, to consider as notorious what they have themselves considered so, and to pursue them over their own ground.

What then was the state of things which constituted this war in fact with Spain? It is known to all that since the cession of Louisiana to the United States, the boundaries of that country have been a subject of dispute between the two nations. A very considerable tract of country has been claimed by both parties. Spanish officers and troops entered upon this territory claiming it as the dominion of Spain. They there apprehended a miserable set of marauders called the Kempers, claiming them as Spanish subjects, and they probably really were such. This is the invasion of our territories and the seizure of our citizens which has been represented as amounting to war between the two nations. At the very moment when this happens no war is declared by either nation against the other, a treaty of amity and peace between the two countries is subsisting in full force; all the relations of peace and friendship are continued; an extensive commercial intercourse is regularly carried on between the people of the two countries; the public ministers and consuls of the respective nations are fully accredited with each other and exercise their ordinary functions, and our own government, with a full knowledge of the claims of Spain to the disputed territory, and all the aggressions which had been committed, is negociating for the amicable settlement of all differences. Yet we are told that at this time, and in such circumstances, the two nations were at war; that they were at war in January, some months afterwards, and of course that they are at war still. Surely, gentlemen, assertions like these, or arguments, if they can be so called, can neither convince nor mislead you. The conduct of the Spaniards in the south may have been violence or aggression or outrage; but such acts, especially when done as these were, under a claim of