right, never can amount to war. If it were so nations would be involved in perpetual war. According to this idea the United States have never been at peace with Great Britain. From the treaty of peace in 1783 until 1794 Great Britain occupied a part of our territory, and we have constantly alleged that she harrasses our commerce impresses our seamen and violates our neutral and independent rights. All this, according to the counsel, must be war. Such a doctrine confounds all distinction between war and peace. While men exist acts of violence and outrage will be perpetrated; and the peace of nations would thus be continually sacrificed by the rapacity and crimes of inviduals without leaving to their governments the right of deciding whether or not they amount to a sufficient cause of war.

In vain therefore do the counsel resort to the president's message and the documents and notorious facts of which they have spoken to prove war in fact. They all prove the reverse. The president, in his message to congress in December last, informs them of the injuries received from Spain; that he has avoided measures which might have led to war; that we ought still to hope that time and a more correct estimate of interest and character will produce the justice we expect ; that these injuries may, however, render force necessary, and therefore submits it to congress to make such preparations as circumstances may require. Surely if this be evidence of the state of the country, it is evidence that it was at peace. The very question submitted to the decision of congress is in effect whether they would think proper in those circumstances to make war, and the recommendation of the President is to prepare for war as an event which may hereafter become necessary.

Whether therefore this question of peace or war be a question of law or a matter of fact for your decision, it seems undeniably clear that in January last, when this expedition was prepared, the United States and Spain were at peace.

I have thus examined the four essential points which were to be established on the part of the prosecution. I think it can be no presumption in me to suppose that they are all supported by the evidence and established to your entire satisfaction.

It must follow that it will be your duty to convict the defendant unless he has justified his conduct by a legal and sufficient defence. If it be your duty you will discharge it with impartiality and fidelity. The path of justice must be followed whether it may lead to conviction or acquittal.

What then is the defence of colonel Smith? His counsel allege that the president and secretary of state knew and approved of the expedition, and this they say is a sufficient justification. Let this pretence, for I will not call it a defence be examined.First I ask what is the proof of this assertion? It rests altogether upon the testimony of Mr. Swartwout, colonel Platt and doc

tor Douglass. They state that, in the conversations which they had with col. Smith on this subject, he alleged to them that the president and secretary of state knew of Miranda's projects and approved of them. They also state that col. Smith declared that his information respecting the knowledge and approbation of the president and secretary of state was derived entirely from Miranda. Mr. Swartwout and doctor Douglass expressly state this, and though colonel Platt, when he was first examined went further, yet when he afterwards voluntarily came to correct the errors of his first statement, he expressly testified that he understood from Smith that all his information upon this point was derived from Miranda. The whole of the evidence upon this point simply is, that Smith told these witnessess that Miranda told him that the president and secretary of state had a knowledge of his views and approved of his project. Now if this be true, it is difficult to conceive how the knowledge of the executive officers that Miranda entertained a project of effecting a revolution in Caraccas can be supposed to authorise a particular expedition for that purpose which was not projected or commenced until many weeks afterwards. Miranda was in Washington in December, and it was in that month that he gave the information and wrote the letters to Smith which have been mentioned. He returned to New-York in January, and then, for the first time, in conjunction with Smith and others, commenced the preparations for this particular expedition. This plain statement shows most clearly that all that could have been communicated by Miranda to the executive when he was at Washington, if he communicated any thing, must have been his general project of effecting a revolution in Caraccas. It was impossible that he should have said any thing respecting a particular expedition from New-York which was not even projected by himself until he returned to this city and here found men and means adapted to his purpose.

But whatever information may have been given to Smith by Miranda, the temerity and precipitancy of Smith's conduct, even if he believed it, cannot fail to strike you. Colonel Smith, according to his own account, relying solely upon Miranda's information, embarked in a flagrant violation of the laws without inquiring farther. Miranda, an adventurer, a fugitive from his own country, ardently engaged in the pursuit of his favourite project, and interested in the highest degree to remove any impediments which might stand in its way, and for that purpose to deceive those whose scruples might otherwise deter them from aiding him, represents to colonel Smith that the executive has dispensed with the laws of the land in favour of his expedition. Smith greedily catches at the bait and embarks in the enterprise. This he does too at a time when he holds an important public office under the executive, is in habits of constant communication

with the public officers, and may at any time in six days ascertain whether Miranda had told him truth or not. These considerations at once show the cunning and duplicity of Miranda, and the culpable negligence of Smith. I cannot persuade myself to believe that you will think the declarations of Miranda, made in such circumstances and for such purposes, sufficient to establish this pretence of the defendant, that the executive assented to this expedition, or to screen him from punishment.

But in order to meet the defendant's counsel fully on their own ground, let it be admitted as a fact for the sake of argument, that this expedition was known to the president and secretary of state, and that they approved of it. This would not amount to an authority to set on foot the expedition, even if the president had power to give such an authority. To know that an offence is meditated, and to approve of the act, are essentially different from giving an authority to perform it. If the president has power to authorise enterprises in violation of our laws, it would seem that something more than knowledge or approbation must be necessary to transfer so important an authority. The counsel for the defendant however say, that they think winking quite sufficient for this purpose. But passing from this point, suppose, if you please, that the president had issued letters patent to colonel Smith, or given him any other formal authority to carry on this expedition. What, gentlemen should be your verdict, upon such a supposition? I affirm to you, and I hope to convince you that colonel Smith would still be guilty of a violation of the law, and must still be convicted. Every one of you knows enough of our constitution and laws to understand this subject. The president has no power whatever to dispense with the laws of the land. The constitution of the United States is a delegation of limited powers, specifically enumerated and accurately defined. The legislative power is vested in congress. The presi dent has only a limited controul over their acts. He alone can neither make nor repeal a law. If he could do so he would be paramount to congress itself, and would absorb in his own person all the powers of the government. The only mode in which he can interfere with the execution of the laws is by the exercise of his constitutional power of pardoning the offender after a conviction for the offence. If this be so it is evident to demonstration that he cannot dispense with a law which has passed through the constitutional forms, and that he cannot authorise an individual to violate its provisions and set its penalties at defiance. Yet the counsel here tell you that the mere knowledge of the president that an offence is about to be committed, and his approbation of the act, is a legal defence, and a valid justification to the offender. I have heard many extravagant ideas and paradoxical propositions. advanced in the course of this cause; but this is a principle which is not merely paradoxical or absurd. It is pernicious and dangerous in the extreme. If it were possible that this doctrine

could be adopted in practice, the constitution would be prostrated and the liberties of the people destroyed. The president would be erected into a monarch with supreme power, and the acts of the legislature would be the sport of his pleasure. The counsel call upon you to stand between the executive and the defendant, whom they describe as his victim. I call upon you in turn to stand between that executive and the offender, who has flagrantly violated the laws, and relies upon the assent of the executive to the act as his defence. If as the counsel suppose, and as I cannot doubt, you feel a sincere attachment to the constitution, and that jealous spirit of liberty which is ever ready to resist the encroachments of power, it is here they should be exerted. It is the defence, gentlemen, and not the prosecution, which should be the subject of your jealousy as freemen, and inspire you with a spirit of opposition and resistance. If the president has intended to shield the offender from the punishment of the law by an unconstitutional attempt to dispense with its provisions, will you, a jury of the country, give effect to such an attempt? This is the executive influence which should be resisted, not by giving it effect in acquitting the defendant, but by enforcing those laws which, while unrepealed by the legislature, cannot under any pretence of authority whatever, be violated with impunity. Surely you will never give your sanction to a doctrine so enormous, so dangerous and fatal to our liberties as that which is urged upon you by this sort of defence.

But the counsel for the defendant still urge, that his intentions were innocent; that he really thought that the president could authorise individuals to set on foot military expeditions; and that therefore he ought not to be punished. This is taking for granted what has not been proved, and giving Smith credit for sincerity of which there is no evidence. But if it were so, still Smith was bound to know the law, which indeed this observation seems to admit, and he was equally bound to know that the president had no power to give him absolution from its penalties. If therefore, he in fact had the consent of the president, he knew or was bound to know, that it could not avail or protect him. There is no analogy between this and a variety of cases which have been put, where offences consist essentially in a felonious intention, or are committed from mistake in relation to facts. Here the error of colonel Smith, if he erred, but of which there is not and cannot be any evidence, was an error of opinion, a misapprehension of the law. This is a defence which the law never allows, and it is obvious that if it could prevail criminal justice must be forever defeated.

If all this should be insufficient to screen the defendant, his counsel then appeal to your compassion. It would be hard indeed they tell you, that a man should be punished who has been seduced into his offence by the highest officers of the government. I have already urged to you that there is no proof on this subject which you ought to regard; but supposing it to be a fact, I trust

you are convinced that it ought not to enter into the scales of justice upon this occasion. If the president and secretary of state, have committed offences, let them be accused and punished.They are not only answerable to all the laws of the land, but are also liable to impeachment and punishment for any official misconduct. It is a maxim in morals and equally a principle of law, that the crime of one man is neither justified nor extenuated by the offence of another. If the president and secretary of state, and colonel Smith have been accomplices together in any criminal transaction, let each one be punished, and let no one escape for so absurd a reason as that the others were accomplices in his guilt.

`But if it were possible that this pretence of the assent of the executive, and the innocence of Smith's intentions, could avail him for any purpose whatever, it could only be considered as mitigating his offence. It cannot therefore enter into your present inquiry, which simply is whether the defendant is guilty or not guilty. When he shall be convicted by your verdict, the degree of his guilt must be determined by the court. The ultimate limits of the punishment are fixed by law, and it is the province of the court to determine according to all the circumstances of the case what punishment is proper, within those limits. This and every other consideration which may serve to mitigate the punishment of the offence will then undoubtedly receive just-weight and attention.

Where then is the pretended defence of colonel Smith? It will not bear the test of sober reasoning and the touchstone of the constitution. It is addressed to your passions and not to your judgment. It must be dismissed as fallacious and unsound.

Let me then take a rapid view of the case which now stands before you for your verdict.

In the month of January last, the United States and Spain were at peace, and all the relations of amity, and the usual intercourse of commerce, subsisted between the two countries. A military expedition, comprising extensive preparations for war was at that time projected and prepared, in the city of New-York, against the colonies of Spain. The defendant, colonel Smith, engaged in this expedition from its commencement, procured some of the most essential means for the enterprise, and provided money and enlisted men for its service. This expedition actually proceeded from New-York to South America, for the purpose of invading the Spanish colonies, and wresting them by force from the dominion of Spain. Such, gentlemen, is a plain statement of the case upon which you are to decide. Is not this an offence? ahigh and most dangerous offence? Is it not the very offence described in the law before you? Certainly, gentlemen, you must answer these questions affirmatively. Yet you are called upon to acquit the defendant. What opinion would the people of the

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