United States and the world entertain of such an acquittal, in such a case. If you acquit the defendant, you say to the world that the United States no longer rank with the civilized nations of the earth; that they have renounced the law of nations; that they permit their citizens not only to violate their own laws with impunity but to invade the people of other countries with hostile force, in a time of peace, as avarice, ambition, or the thirst of plunder may dictate. Such a decision would justify the acts of the pirate on the ocean, and would sink our national character to the barbarism of savage tribes. I need not repeat to you the consequences to which this offence may yet lead. The government of Spain may undoubtedly consider it a justifiable cause of war, and. the nation may yet expiate with its blood the crimes of its citizens. It is now submitted to you either to give your sanction to this offence and to such principles, and acquit, or to enforce the laws, and convict. I trust in God and in your intelligence and integrity that you will pronounce the offender guilty.

[Mr. Edwards' speech is here omitted.]

TALMADGE J. Gentlemen, the trial upon this indictment has already occupied several days of your time. It is now drawing to a close. You have listened to the testimony of the witnesses and have attended to the argument of counsel. If in some instances the latter has been more at length than clear and illustrative, in others it has been ingenious and eloquent.

This is a cause of considerable expectation and importance, both as it regards the individual accused, and as it relates to that system of neutral policy which hitherto our government have invariably pursued, and from which the United States, in a great measure derived, and are to expect, prosperity and happiness. Conviction may not only subject the defendant to fine, but the loss of personal liberty; and should our government permit offences of this nature by passing them ever with impunity, war and a participation in the quarrels and bloodshed of Europe must necessarily ensue. Need I say that such consequences ought especially to induce a jury to the most careful and dispassionate consideration of the evidence, and bear them superior to any prejudice which idle report, or out-door observation, may have excited. You will now give your attention to a review of this subject. It shall be my endeavour to present it in its native state stripped of embellishment. It is my duty to state to you the law, the substance of the accusation, and the defence.

You have heard much said upon the right of a jury to judge of the law as well as the fact. Be assured, that on this occasion there is not the least desire to abridge those rights. I am an advocate for the independence of the jury. It is the basis of civil liberty, and in this country I trust will ever be a sacred bulwark against oppression and encroachment upon political freedom. The law is now settled that this right appertains to a jury in all criminal cases. They unquestionably may determine up;

on all the circumstances if they will take the responsibility and hazard of judging incorrectly upon questions of mere law. But the jury is not therefore above the law. In exercising this right they attach to themselves the character of judges, and as such are as much bound by the rules of legal decision as those who preside upon the bench.

It was delivered as the opinion of this court by the judge who presided at the commencement of the term, and it is still my opinion that the U. States were at peace with Spain at the time the defendant is charged with the offence in the indictment. It was also the opinion of the court, and no subsequent argument has changed my view of the subject, that the previous knowledge or approbation of the president to the illegal acts of a citizen can afford him no justification for the breach of a constitutional law.— The president's duty is faithfully to execute the laws, and he has no such dispensing power.

These points have received the decision of the court seriatim, and I trust a jury will not set up a contrary opinion but with great circumspection and deference to the learned judge who delivered them, the necessity of whose absence is a subject of regret, and whose opportunity for correct legal decision is obviously so far superior to what falls to the common lot of jurors.— Should you however choose not to confide in the correctness of the court in this respect, the data exhibited, and which will lead to your determination of these points, are a view of the constitution and laws of congress giving and defining the power of making war; the powers and duty of the executive branch of the government the statute upon which the indictment is preferred, and the treaty of San Lorenzo, 1795, which stipulates" that "there shall be a firm and inviolate peace and sincere friendship "between his Catholic Majesty and the United States." You have no document, nor any proof before you, establishing a state of things contrary to the stipulations of the treaty I have now read.Certain papers have been offered in evidence, which, it is said, acknowledge aggressions by Spanish subjects, and evince a state of war in fact between the United States and the king of Spain.By authority of the former decisions, those were decided irrelevant and rejected as improper evidence. The United States cannot be constitutionally at war, but when war is authorised by congress, or is rendered an act of necessity by the invasion of a foreign enemy. Principles of self defence in such case point it out as the duty of the chief magistrate of the nation in the interim of congress to repel force by force.

The greatest scope of the jury is to determine upon points arising upon the pleadings and such evidence as is permitted to come before them. It is the exclusive province of the court to determine upon the admissibility of evidence. That which their judgment rejects as improper, the jury have no right to presume.

The contents of those papers is unknown, and conjecture can never afford safe ground for the decision of a jury, sworn to determine truly. Our living at peace is what constitutes the offence. For although the defendant was concerned in setting on foot, or preparing the means for a military expedition against the Spanish dominions, if the United States were at that time at war with Spain, he would be innocent, and should you so determine, you will acquit the defendant upon his indictment..

66

The indictment against William S. Smith, contains counts, charging him with offences prohibited by an act of congress of June, 1794. The fifth section of that act reads as follows: "that "if any person shall, within the territory or jurisprudence of the "United States, begin or set on foot, or provide, or prepare the "means of any military expedition or enterprise, to be carried "on from thence, against the territory or dominion of any foreign "prince or state, with whom the United States are at peace, every such person, so offending, shall, upon conviction, be ad"judged of a high misdemeanour," &c. It is the peculiar province of the jury to inquire, whether the evidence adduced maintains the charges in the indictment. Ifit fully supports any one of them, it will be your duty to find him guilty. The proofs in relation to the matters of fact, charged in the indictment, have very properly been divided, into that which regards the setting on foot, providing or preparing the means within the United States, for an expedition or enterprise to be carried on from thencethat which regards the object, and that which manifests the defendant's participation and agency in setting on foot and preparing the means for such expedition or enterprise.

A summary of the testamony of the many witnesses who have been examined to prove the first point is, that the Leander, a merchant vessel, owned by Samuel G. Ogden of this city, and for some time previously used in the St. Domingo trade, had just returned from a voyage from that island, when she was chartered to take out Gen. Miranda and such persons as should choose to go along with him. The vessel immediately underwent repair and alteration suitable to the particular purpose; having a new lower deck built in her hold. She cleared out at the custom-house on the 23d January, and sailed from this port on the 2d February last-had a very crowded eargo, and was laden almost entirely with articles of warlike preparation. From 180 to 200 men were here engaged in the enterprise, several of them immediately after took military. title and rank, and all were submitting to subordination and discipline. Eleven or twelve hundred suits of soldiers' uniform-about six hundred swords and cutlasses, and a great number of belts, pouches and cartridge boxes-about four thousand five hundred pikes-a number of muskets, horsemen's pistols and blunderbusses, all of which were principally in boxes or casks. Exclusive of her complement of

seventeen guns, the Leander had on board about thirty-four cannon, with several field carriages-one hundred and fifty casks of gun powder, and a quantity of ball suited to cannon and muskets of different caliber. These articles were chiefly purchased by the captain of the vessel, Armstrong, upon the credit of Mr. Ogden, and sent on board with a view to the enterprise. The object was either military or commercial. Miranda was at the head of the expedition, who for twenty years has made no secret that his wishes and intentions were inimical to the duration of the Spanish government in South America. His declarations to Mr. Ripley, to Col. Platt and Swartwout, avow his design of returning to his native country, the province of Caraccas; to revolutionize it, and to free his countrymen from what he terms the yoke of Spanish oppression. Allurements, military honours and rapid fortune, were held in view to induce men to enter upon an enterprise, secret and unexplained, while written assurances were given that the service should neither be against the French nor English.

The testimony of Mr. Rose, who went out in the Leander from this city, and remained on board until the capture of the two schooners, and Miranda's return with the Leander to Barbadoes, will more clearly than that of any of the other witnesses, enable you to determine whether the original intention of the preparation and outfit of the Leander was for a military expedition, or mere commercial enterprise. The witness swears that soon after the vessel left the Hook, he with several others were industriously employed in making handles to the pikes, and putting the arms on board into complete readiness for actual service. That the vessel first touched at Jacquemel, but did not there unload any of her cargo, or transact business of a commercial nature, and only remained to recruit a few men and equip the two schooners, to accompany and support the Leander in the enterprise, out of the supplies she brought from New-York.

While at Jacquemel Miranda. issued commissions to those who took military rank and office, before the Leander left this city. From St. Domingo this squadron proceeded to Aruba on the road to the Caraccas, when the men were all landed and underwent military parade and inspection, and here first were made acquainted with the particular destination. The hostile landing of a military force, and the distribution upon the Main, of proclamations in the Spanish language, headed by Miranda's name, as general and commander in chief, next are attempted off Porto Cabello by the very men who were engaged in this city, armed and equipped with the very preparations provided and carried from here. These attempts are opposed by Spanish government vessels; an engagement ensues; the invaders are beaten off, with the loss of the two schooners and many of the men.--

The Leander returns alone, taking the course to Trinidad, but falling in with an English sloop of war the Lilly, with her went into Barbadoes.

The counsel for the defendant urge this to be a mere commercial enterprise, from the facts, that the vessel had been previously occupied in the West-India trade; that the articles composing her cargo, were those of ordinary commerce, the open manner they were purchased and put on board, and that the Leander was not in complete condition and readiness to carry on a military enterprise at any time, while she remained within the United States. I think there is some reason to doubt the correctness of this position, and to suspect that the 1200 suits of soldiers' uniform, the regimental coats, the cannon drills, the chest of armourer's tools, and the case of surgeon's instruments, not to be paid for unless the expedition should be successful, were not intended as articles of

commerce.

It is not necessary that the expedition should be consummated without deviation of course. Was it begun, and were the means prepared to be carried on from the United States? The words of the statute are," if any person within the teritory or jurisdiction of "the United States, shall provide or prepare the means of a mili"tary expedition, to be carried on from thence ;" therefore, it matters not whether or no, the vessel, at the identical time of sailing, is in complete readiness for hostile engagement. You are not to inquire of her capacity to atchieve the object. If, in fact, the Leander sailed with the intent, and means to carry on such an enterprise, I conceive the transaction comes within the prohibition of the act. But the facts in evidence is the proper business for your determination. In the case I mentioned yesterday, under this very act, for a similar offence, tried April, 1795. terson, justice, charged the jury," that converting a merchantship into a vessel of war, must be deemed an original outfit ; for the act would otherwise become nugatory and inoperative.It is the conversion from the peaceable use to a warlike purpose, that constitutes the offence.

Pa

The vessel in question, arrived in this port with a cargo of coffee and sugar from the West-Indies, and appears to have been employed by her owner with a view to merchandize, and not with a view to war. The inquiry is, therefore, united to this consideration, whether, after her arrival, she was fitted out in order to cruise against a foreign nation, being at peace with the United* States. It is true, she left the wharf with only four guns, but it is equally true, that when she dropped to some distance below, she took on board three or four guns more, a number of muskets, water-casks, &c. and it is manifesť other guns were ready to be sent to her by the pilot-boat. These circumstances clearly prove a conversion from the original commercial design of the vessel, to a design of cruising against the enemies of France,