attempted to justify himself under the order of the king's minister, he should be told, that that order could be no protection to him, because there had been no declaration of war by the king; would not the feelings of every man revolt at so unjust a subterfuge, and would not every sense of right and justice oblige us to say, the minister must be punished, but the subject excused.

I shall, gentlemen, take it for granted, that the orders or sanction of the president of the United States, would be a complete excuse or justification for the defendant, and proceed to inquire what is the evidence that the president had knowledge of, and did approve and sanction Miranda's expedition. And here we contend, that the counsel for the prosecution are precluded from saying that the evidence of this fact is insufficient, for they, having refused to let us lay before you the testimony we have offered, cannot now avail themselves of the want of proof, which they themselves have excluded. If you should think that the knowledge and sanction of the president would be a justification, every principle of justice requires that you should take that as if it had been proved in the most conclusive manner. The refusal to let us give testimony in this point, has prevented your hearing the evidence we had to offer, and must be taken as strongly for us as if the fact we allege had been proved by a thousand witnesses. Though the counsel for the prosecution have not thought proper to examine, in this cause, their own witnesses whose testimony afforded the fullest evidence of this fact, on the trial of col. Smith, and though we are not permitted to examine the numerous witnesses who are attending here on our summons to give their testimony, and although others, whom we have subpoenaed, have been excused from attending; yet there are notorious facts from which the conclusion that the president and secretary of state, knew and approved of this expedition is inevitable and irresistible.

First recollect the notoriety of the equipment of the Leander. There was not a circumstance connected with the expedition that was not known here to every body; it was conducted under the very eyes of the officers of government. But it was well known at Washingtion-of this the letter of Mr. Duncanson affords strong proof. (Here Mr. Colden was interrupted, and told by the court that that letter was not in evidence in this cause) Mr. Colden said he would suppose the case-suppose a letter had been sent from Washington stating-(here Mr. Colden was again interrupted by the court, and told that such suppositions would not be permitted) Mr. Colden then said he should submit to the decision of the court. He was content to let the jury draw their own inferences from what had passed before them, and would only request them to recollect the circumstances of gen. Miranda's visit to Washington; his frequent interviews with the presi

dent and officers of government, which was in evidence in this

case.

I shall not detain you, gentlemen, with reading any of the authorities which have heretofore been read, to show what is your province and what your rights and duties as jurors. It is admitted by the counsel for the prosecution, that you have the right to determine the law and the fact. But this is not enough, we say that you are bound by the most sacred obligations-by the obligations of your oaths-by your obligations as citizens-by the obligation that every one is under to protect innocence-by the obligation which binds every freeman to oppose oppression, and stem the abuse of power-by all these you are bound to exercise your right, and to judge of the law as well as of the fact.

I

I will add, gentlemen, but one word more. This is a prosecution commenced by order of the executive government. repeat it again, it is a state prosecution. I might say persecution. The defendant tells you that he can justify himself by such and such witnesses; but when these witnesses are regularly called upon by the defendant, in the mode pointed out by the constitution, the president, the prosecutor, writes a letter to the court, and tells the court he cannot spare these witnesses, and, what is most extraordinary, that he will never be able to spare them, when they may be wanted for the purpose of this trial. And it is not only the heads of departments who cannot or will not attend, but even the clerks in their offices are kept back. The affairs of the nation will not even permit a temporary absence of one of these. Is this just? Is it giving the defendant fair play? and will you convict your fellow-citizen under circumstances like these, let the testimony which you have heard be what it may ? We are indeed told, that we might have had the deposition of these witnesses under a commission, and interrogatories. But we have indignantly refused such an offer, and we protest against its having that influence on your minds for which it is insidiously intended.Why should these witnesses be allowed to shrink from an open and public examination? Why should they be allowed to deprive the defendant of the benefit of that provision ofthe constitution which declares, that "the accused shall have the right to be confronted with the witnesses against him?" Why should not this defendant have the same fair open trial that the law allows in every other case? Why shall not these witnesses be obliged to stand before you, and submit to a cross-examination, as witnesses in other cases are obliged to do? Why should they have an opportunity, which is not given in any other criminal case, of giving evasive, qualified and coloured answers. There is no reason, gentlemen, why this defendant should not have all the benefit of the laws that any other accused might have; and however the administration may wish his conviction, and have therefore suppressed his testimony, you cannot, you will not, convict one who has not had a candid fair and impartial trial.

Mr. Hoffman. Gentlemen of the Jury, I had hardly expected it would again have been my lot to address a jury of my country, on the subject of the present prosecution. I had trusted that the triumphant acquittal of col. Smith, would have furnished a deep and effectual admonition to his prosecutors; and I little expected, that they would have attempted to atone for their defeat, by the conviction of Mr Ogden.

The question in the present cause is the same as that of col. Smith's; its merits have, therefore, already received a patient, minute and ample investigation. An impartial and independent jury, selected from various classes of society, and from the different political sects into which our citizens are divided, have honourably acquitted col. Smith; and in his acquittal the innocence of Mr. Ogden was virtually pronounced. It was hoped, and indeed expected, that the irksome and odious business of prosecution would here have ceased. The innocence of those gentlemen, touching the transaction in question, had been thus established-the correctness of their conduct, as it concerned the enterprise of gen. Miranda, had been made manifest. The spirit, nay, the very letter of the law had been tested, with regard to their agency in that affair-both the spirit and the letter had pronounced the agency of col. Smith, and consequently that of Mr. Ogden, innocent.

If then, it was merely the wish of government and its agents, to ascertain the culpability of these defendants, such object was fully answered; and on that verdict being pronounced, the prosecution of Mr. Ogden should have been dismissed.

If it was not the individual, but the crime, that was the object of this judicial process, then the prosecution should have ceased, when the non-existence of the crime was proved. But it seems, from motives best known to those who have instituted this inquiry, that another, and a similar experiment is to be made on the discernment and justice of a jury. Vain effort! The verdict so lately rendered in this very court, on the subject of this very trial, is still glowing in the public mind. You have all witnessed the general and unequivocal sentiment of approbation which it excited-you have heard the jurors who delivered that verdict, honoured with the heartfelt applause of their fellow-citizens; and can it be expected that you will act in direct opposition to so noble an example-in direct opposition to every just and generous principle, and sacrifice the defendant to the lawless pleasure of the government.

Gentlemen-the defence of my client has already been so ably conducted by my friend who has just spoken, that I find the field of argument extremely limited. Nor, indeed, do I feel any obligation to detain you long. The testimony which has been repeatedly scrutinised in your hearing, must be so deeply engraved

on your memories, and the principles of law, involved in the controversy, must by this time be so familiar to your minds, that any particular recurrence to them would be superfluous. I shall therefore recal your attention, rather to general principles and remarks, than to any minute and elaborate discussion.

Gentlemen, you are constitutionally invested with the right of judging both on the law and the fact, in criminal cases. This great principle, so indispensable to your efficacy as guardians of private right and personal liberty, is now established by the constrained admission of our learned opponents.

It was desirable, for the cause of justice, for the honour of of those who have instituted this prosecution, and for the more satisfactory exculpation of my client, that the counsel of the government would have permitted every circumstance connected with general Miranda's expedition, to have been thoroughly unfolded. Then, indeed, would you have been enabled to apply this important principle; and in a more satisfactory manner, to have exercised your acknowledged rights. We should then have introduced General Miranda to you, with his letter of credence from England, which was forwarded from here to our executive government. We should have followed him to the city of Washington, where he disclosed his views in person to the president. We should have pointed him out to you, the companion of the secretary of state, and enjoying all the courtesies of presidential favor. We should even have endeavoured to procure you a peep into the audience chamber, where affairs of high import and state-secrecy, were calmly discussed and arranged. But these matters, it seems, are too sacred for open disclosure, or for vulgar observation. Clouds and darkness are round about them, and you must be content to gain a knowledge of their nature, from the casual gleams thrown on them by chance and circumstance.

Before I proceed further, permit me to advert to another important principle, necessary for you to recollect, that you may be clearly acquainted with the extent of your powers. Your deliberations are not to be confined merely to the bare facts specified in the indictment.--Were that the case, gentlemen, your scope of action would be limited indeed. You would be entirely at the disposal of a public prosecutor; he might so frame his indictment, as to compel you to render a verdict, in absolute opposition to your real opinion of the nature and existence of the crime. He might kindly select such acts as would suit is purpose, and suffer a jury to decide on them merely; but the law he would carefully reserve for, what he might think, the courteous opinion of the judge. Thus shackled and circumscribed, a jury would become as mere puppets in the hands of the juggler-they might be made the automata of go

vernment, to act their parts, according as the hidden mechanist puts them in motion. No, gentlemen, you hold a more elevated rank in the administration of criminal justice. On the magnitude of your powers, and the integrity of your decision, the acased relies for an acquittal. He demands your judgment on The law, and he claims your decision on his conduct in the Mianda transaction, viewed in its real merits and most extensive atitude: neither restricted to the counts of an indictment, nor to he evidence selected by the prosecutor. You are to scrutinize with microscopic, but with liberal eye, his actions, his motives, and his intentions. You are to examine whether he was actuated by dangerous, dishonourable, and illegal views; or whether his object was pure, honest and laudable. Whether he acted in wilful hostility to the laws and interests of his country, or whether, in fulfilling the suggestions of government, he erred in conduct, either from ignorance of the powers vested in the executive department, from a misplaced confidence in their wisdom to discern the limits of their own authority, or from a too credulous reliance on the candour and integrity oftheir word. Having thoroughly investigated these facts and circumstances, you are to decide on his innocence or guilt. Leaving to little minds the subtleties of legal disputation, you are to declare whether, on the broad and plain principles of unerring justice, he deserves to be consigned to punishment and degradation.

Gentlemen-I shall endeavour first to convince you, that the proofs do not establish the facts charged in the indictment; and secondly, if I should fail in so doing, that the conduct of the defendant was completely justified, by his having acted under the sanction, and with the approbation of the president.

The fifth section of the statute on which the defendant is indicted, declares," that no person shall, within the territory or jurisdiction of the United States, begin, or set on foot, or provide or prepare the means for any military expedition or enterprise, to be carried on from thence, against the territory or dominions of any foreign prince or state, with whom the United States are at peace." I hardly need remind you, that this being an act extremely penal, it requires a strict and literal exposition. No inference can be made to embrace the case of the defendant. The proof offered must be plain and positive-nothing ambiguous, nothing uncertain, nothing left to conjecture. In a prosecution like the present, the most rigorous rules of evidence should be applied in favor of the accused, and the most conclusive proof of his guilt should be exacted.

The testimony produced, places the agency of Mr. Ogden in the light of a mere mercantile speculation. He charters his ship to general Miranda for a voyage to St. Domingo. He

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