any secrets of government connected with the measure for which Col. Smith stands indicted.

But it is also urged that the witnesses could not be forced to answer questions that might criminate themselves. No; but there is nothing in that argument that should prevent their being brought into court, to see whether they will make an objection which they certainly may waive. In truth, however, Col. Smith's affidavit does not lay us open to that argument; for it does not charge any one with approving of that expedition, but the president and secretary of state. Now, Mr. Madison may be called to prove the conduct of the president, and the other witnesses to prove the conduct of Mr. Madison.

PATERSON, J. Would Mr. Madison be liable to a prosecution, if he answered that the conduct of Col. Smith was with his knowledge, or knowledge and consent of the president?

Emmet. If the view I shall hereafter take of the statute be correct, he certainly would not.

Another circumstance has been mentioned; that those gentlemen have offered to be examined under a commission, and the court was pleased to express some surprise that such an arrangement had not been before thought of. With the utmost deference, I beg leave to answer, that the circumstance was adverted to; but neither the defendant nor his counsel are willing to accede to that arrangement. For my own part, I declare, that except upon some very extraordinary occasion, which I cannot now foresee, I never will consent to examine a witness under a commission in a criminal case, if his attendance on the trial can be forced. Even in civil causes, I have more than once had occasion to lament the inroads that are made upon oral testimony, by the increased use of written depositions; and I am convinced that the latter frequently prevent the discovery of truth. Every one knows, that when a witness is examined in open court, the manner in which he answers, and the manner in which he declines to answer, are matters of public observation; and that cross-examination may draw out more than could be obtained by studied and written answers to written interrogatories. It is the wish of my client that this case shall be made as clear as possible; that the truth shall be eviscerated and brought into public view; that the allegations of the defendant, aud the testimony of the witnesses may be compared and judged of by the jury and the public.

The advantages of oral testimony over written depositions, are so strikingly set forth by Sir Matthew Hale, in his history of the common law, (vol. 2. ch. xii. p. 145.) that I shall beg leave to read a short extract from it; as, perhaps, if the same reasons were assigned by myself, they might be supposed to have some personal allusions.

"The excellency of this open course of evidence to the jury,

" in presence of the judge, jury, parties and counsel, and even of "the adverse witnesses, appears in these particulars :

"1st. That it is openly, and not in private before a commis❝sioner or two, and a couple of clerks; where oftentimes witnesses will deliver that which they will be ashamed to testify "publicly.

"2dly. That it is ore tenus, personally, and not in writing; "wherein oftentimes, yea too often, a crafty clerk, commission66 er or examiner, will make a witness speak what he truly never CC meant, by dressing of it up in his own terms, phrases and ex"pressions. Whereas, on the other hand, many times the very “ manner of delivering testimony, will give a probable indication "whether the witness speaks truly or falsely. And by this means "also, he has an opportunity to correct, amend, or explain his tes❝timony, upon further questioning with him; which he can never "have, after a deposition is set down in writing.

"3dly. That by this course of personal and open examination, "there is opportunity for all persons concerned, viz. the judge, CC or any of the jury or parties, or their counsel or attornies, to proCC pound occasional questions, which beats and boults out the truth "much better, than when the witness only delivers a formal se"ries of his knowledge without being interrogated. And on the "other side, preparatory, limited, and formal interrogatories in. writing, preclude this way of occasional interrogations; and the "best method of searching and sifting out the truth, is choaked and suppressed.

"4thly. Also by this personal appearance and testimony of "witnesses, there is opportunity of confronting the adverse wit"nesses; of observing the contradiction of witnesses, sometimes "of the same side; and by this means great opportunities are gained, for the true and clear discovery of the truth.

"5thly. And further, the very quality, carriage, age, condition, "and place of commorance of the witnesses, are by this means, "plainly and evidently set forth to the court and the jury; where"by the judge and jurors may have full information of them; and "the jurors, as they see cause, may give the more or less credit "to their testimony.”

There is another objection to taking the depositions of witnesses by commission in criminal cases, which I think irresistible; if the witnesses swear falsely, how are they to be indicted for perjury? In urging this argument, I can have no allusion to the witnesses, who have offered to be thus examined; but this case is so conspicuous and important, that every part of its proceedings may hereafter become a precedent; and in this case the precedent might give rise to a very dangerous practice. I therefore feel that I should not only be doing injustice to my client, but also injury to the general administration of justice, if I consented

to any other mode of taking the testimony of those gentlemen than viva voce before the jury.

We come now to the most important question; the materiality of the testimony expected from those witnesses. So far as relates to the attachment, I trust I have already convinced the court, that it ought to be laid out of consideration; that process being a matter of right. The witnesses are in contempt; when they come forward to purge themselves of that contempt, then and not before, ought the nature of their evidence to be taken into consideration. I deem it, however, to be the most important of all questions raised in this cause; since the counsel for the prosecution resist our application to put off the trial, on their allegation that the testimony is immaterial. The remainder of my observations shall therefore, be directed to the support of that application.

The facts, which we hope to prove by those witnesses, are very material, either for a complete defence or for mitigation of punishment; and in either case we have a right to ask for compulsory process to bring them into court, and for the postponement of the trial till they do come. It cannot be expected of us that we should, in this stage of the proceedings, disclose our defence, and give the opposite side advantage of a detailed argument upon the application of our evidence. We shall do enough, if we show by a general view of the subject, that those facts may be applicable to our case either in justification or in mitigation of punishment. First as to justification. The purport of a constitution, is to define the duties of the constituted authorities, to prevent their usurpations or collisions, and to limit the powers of public officers, in order to protect the people from their encroachments. It seems to me, therefore, that the fair construction of our constitution, as to the right of declaring war, is that the executive shall be controuled, and deprived of that baneful prerogative, which is exercised by the chief magistrate of England. If the president undertake to declare war, he becomes undoubtedly and justly liable to impeachment; but it is too harsh a construction of the constitution, to say that it has any reference to the conduct of an individual acting bona fide under the president, and by his authority, in times and circumstances such as those when general Miranda's expedition was set on foot. No subordinate officer or private person acting by the president's authority, falls within the purview of the constitution, or becomes criminal, unless by knowingly and intentionally assisting to violate its provisions, he should involve himself in the guilt of his principal. Where, therefore, the situation of the country affords a reasonable ground for supposing that a war with some foreign power, may speedily break out, I submit that the subordinate agent, who, with the knowledge and under the disections of the president, provides or prepares the means for a military enterprise against that power, stands acquitted, and that If there has been any misconduct, it must be answered for by the

superior officer alone. Who is to be the organ of congress, if secret preparations for war shall have been decided upon? Undoubt edly the executive. Suppose then the head of the war department, by the desire of the president, should write to any contractor or subordinate officer to provide a million of cannon balls, or any of the other things necessary for a military expedition, while congress were sitting with closed doors, deliberating upon an avowedly hostile message, sent them by the president; would the contractor come under the penalties of the law, if he accepted and executed the contract, and thereby provided and prepared the means for a military expedition? Or should he say, I will not execute the contract, or the inferior officer, I will not obey your orders; for I do not know that you have the sanction of congress, as they are still sitting in secret deliberation? I venture to assert that a more unwise or injudicious construction could not be given to the constitution, than to say that it prohibits a subordinate officer from paying obedience to the orders of his superior, or that the commands of the president would not be to him a sufficient justification of his conduct under all the circumstances of the case.

Spain had committed depredations on our territory: the message of the president details the particulars and recommends a hostile attitude; congress sit with closed doors to discuss the question. To whom then should the people at large look for information or guidance, but to the president? Is it not competent to congress to decide secretly on the propriety of anticipating an enemy before he has matured his strength? If they should so determine to declare war, would they not naturally authorise the president to take all necessary steps for attack or defence, unknown to Spain? A citizen residing distant from the seat of go vernment, can only know such facts as are public; he is not likely to have direct communication as to the secret objects of the cabinet or congress. But when he sees that Spain has commenced hostilities against us, and finds that the president has recommended war, on which the two houses are deliberating in secret; when at the same time he receives satisfactory assurances that he has the approbation of the executive, shall he be culpable if he' acts on those views and on that authority?

Here I am met by an objection, that colonel Smithis does not lay any foundation for supposing this to be the state of the coun try; nor does he swear that he expects to prove those facts by these witnesses. To that I answer, that perhaps we may question them as to those facts; but we do not complain of want of testimony on that subject; we may prove it by other means; I see a very venerable* witness in court, by whom we can certainly prove the state of the country.

*The Vice-President.

It is not necessary to specify in the affidavit, more than we expect and want from those witnesses; it never yet was required of an accused, that he should disclose, on a motion of this kind, all the particulars of his defence, and how each fact is to be proved. In this state of the cause, we may well assume circumstances of public notoriety, and couple them with those we wish to prove by the witnesses, in order to see whether the whole together will not make a justification.

The argument which I have hitherto urged from the state of the country, acquires infinitely more force, when you consider the precise charge in the indictment, which is framed pursuant to the statute, for setting on foot, providing and preparing the means for a military expedition or enterprise.

PATERSON, J. What are the words of the statute?

Emmet read from Graydon's Dig. p. 70. the 5th section of the act of 5th of June 1794, "If any 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, every such person so offending "shall," &c.

66

It appears then, that the indictment and statute are only pointed against preparatory acts for carrying on an enterprise against a power at peace. Will the counsel for the prosecution offer evidence of the sailing of the Leander, or of any act of hostility? If they do, it must be in order to lay matter of aggravation before the jury, and let them consider how far that is consistent with their denial of our right, to prove matter of mitigation in the same way. But as to the acts charged in the indictment, they are only preparatory and independent of any actual hostility. As to them, the state of the country forms an irresistible justification both of colonel Smith and of the president. The constitution indeed does not allow the latter to declare war; but does it forbid his providing and preparing the means of carrying it on, while congress are in actual and secret deliberation whether they shall declare war, against a nation that is committing and provoking hostilities? Spain, indeed was technically at peace by the treaty of San Lorenzo, but she was actually at war by the law of nations; she had broken that treaty, plundered our ships, invaded our territories, and carried our citizens from thence as prisoners by military force. Such a nation is not entitled, if I may say so, to the benefits of this act, the object of which is, that so long as any prince or potentate shall act towards us with perfect amity, and not by equivocal or unfriendly conduct, render preparatory measures for war advisable, so long it shall be forbidden under the penalties of this law, to any individuals to break that amity, and by unauthorised acts to endanger the peace of the two coun

K