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and if he took them with him, it is a great pity he did not leave them there," which reply, delivered with a slight brogue, was very effective.*

Mr. Emmet continued his professional labors until the time of his death. His devotion to business was unceasing. More than thirteen hours of the day were occupied in study and in the office. His evenings were passed in the investigation of cases; and he very frequently extended his studies until after the hour of midnight. In court, too, he was often engaged until a late hour. This incessant toil he was enabled to undergo by his temperate and regular habits. He mixed but little with the fashionable world, and rarely appeared at public entertainments. "As an advocate," says one of his cotemporaries, "Mr. Emmet was unrivalled. Thoroughly imbued with the learning of his profession, he had also made himself minutely acquainted with the political history of Europe. For many years engaged in politics, and on terms of intimate intercourse with the first men of the age, he was enabled in aid of his argument, to give the happiest historical illustrations, and drawing on his memory, he overwhelmed his antagonists with parallels and striking contrasts, which they were not competent to explain or repel. The great charms of his eloquence, however, consisted in his earnestness and splendid imagery. Logical, clear and profound, he presented his argument in all points of view. Every principle which could be brought in favor of his clients was urged to the uttermost. His manner was deeply impressive. No one that ever heard him speak could forget his dignified, but earnest attitude, his forcible and unstudied gestures, obviously springing from the impulse of the moment; his powerful and expressive voice, whose very tones carried conviction, and above all, that noble exhibition of passion, imagination and reason; all combining and concentrating in one powerful, and often irresistible appeal to the hearts and understandings of the audience. No orator knew better how to enlist his hearers on the side of his client, or to avail himself of that sympathetic feeling, which in a deeply excited audience is communicated from bosom to bosom, until the jurors themselves, yielding to the influence, find a justification for the verdict they determine to give, in the glistening eyes and excited countenances of the surrounding spectators. †

In the year 1827, at the October term of the Circuit Court of the United States, Mr. Emmet was engaged in several important cases, among which were the celebrated Astor cause, involving the title to a great part of Putnam county, New York; the trial of Lieutenant Percival, on a charge of extortion, and the case of the Sailors' Snug Harbor. On Wednesday, the fourteenth of November, while attending the trial of the latter cause, he was seized with an apoplectic fit, and on being carried home, expired in the course of the following night.

THE DEFENCE OF WILLIAM S. SMITH.

This speech was delivered by Mr. Emmet in the trial of William S. Smith, who was charged with being concerned in preparing a military expedition, set on foot in the city of New York, and intended to be carried on against the dominions of Spain, in South America, at a time when peace existed between the United States and Spain.‡

*Sullivan's Familiar Letters on Public Characters.

GENTLEMEN OF THE JURY: I assume it as a fact, which cannot be denied, and which i clearly to be inferred from the manner of con ducting these proceedings, as well as from the parties who appear against the defendant, that this is emphatically a State prosecution. Impressed with a conviction of that fact, I did not think, at the commencement of this court, that it would have become my duty, during its sitting, to address a jury; for when the defendant came forward and averred upon oath, that he had acted with the knowledge and approbation

+ See American Annual Register, for 1827-8-9, vol. 4, of the Executive; when he threw down the

part 2: and the Memoir of Thomas Addis Emmet, by Charles G. Haines; to which the editor is indebted for the material of this sketch.

This expedition is known as Miranda's Expedition. A general account of it was published in New York in 1808.

The trial of Mr. Smith took place in the Circuit Court of the
United States, for the New York District, in July, 1806--
See Lloyd's Report,

which scarcely thirty years ago were colonies, engaged in a bloody struggle for the purpose of shaking off their dependence on the parent state, the attempt to free a colony from the oppressive yoke of its mother country, is called audacious, novel, and dangerous." "It is true, General Miranda's attempt is daring, and if you will, audacious: but wherefore is it novel and dangerous. Because he, a private individual, unaided by the public succor of any state, at

gauntlet of investigation on that point; when he indicated, as the witnesses, by whom he meant to prove his assertion, the very heads of departments themselves; when he made the utmost exertions to procure their attendance, and avowed his intention of appealing to their oaths, I confess I believed that the public prosecutor would not have deemed it conducive to the honor of his cause, or the exalted character of the Executive government, to urge on the trial of this State prosecution, till those wit-tempts to liberate South America? Thrasybunesses, whose presence we have not been able to procure, and whose absence is attributed, without contradiction, and upon oath, to that very Executive, had come in and deposed as to the facts alleged in the defendant's affidavit. I thought that the magnitude of those considera-fided tions would have overpowered the littleness of legal discussions; and that this cause would have been postponed by common consent, until it could be brought forward with all its circumstances; and a jury, and the world at large, enabled to form a correct judgment of the nature and justice of this prosecution. But it has been thought advisable to pursue a different line of conduct. We are forced on to trial, without the benefit of our whole means of defence; our witnesses are wilfully absent; our testimony is maimed and mutilated; we are tied and bound, and cast into the furnace; but still we hope that you, like the angel of God, will walk with us through the fire.

lus! expeller of the thirty tyrants! restorer of Athenian freedom! wherefore are you named with honor in the records of history? Because, while a fugitive and an exile, you collected together a band of brave adventurers, who conin your integrity and talents-because, without the acknowledged assistance of any state or nation, with no commission but what you derived from patriotism, liberty and justice, you marched with your chosen friends, and overthrew the tyranny of Sparta, in the land that gave you birth. Nor are Argos and Thebes censured for having afforded you refuge, countenance and protection. Nor is Ismenias, then at the head of the Thebean government, accused of having departed from the duties of his station, because he obeyed the impulse of benevolence and compassion towards an oppressed people, and gave that private assistance which he could not publicly avow.

Of General Miranda it is true that he has You, gentlemen, are taken from the mass of been a wanderer from court to court, like Hanyour fellow-citizens; it is, therefore, natural to nibal, supplicating assistance for his country. apprehend that you may be influenced by those He served in Florida, as your ally, during your prejudices and misconceptions, which have revolutionary war; and there, from becoming been disseminated through the community; interested in your contest, from contemplating and it becomes my duty to endeavor to remove the prospects that were opened to you by the them. Against General Miranda, and the ob- possession of independence, he first conceived ject of his expedition, I have heard and read the project of emancipating South America. some malignant calumnies, which only could From your own altar of liberty he caught the have originated with mean and mercenary holy flame, which has since inextinguishably beings, who never yet sacrificed a selfish feel- burned within his bosom; which has driven ing to a public principle; whose hearts never him from his home, his family, his social circle, sympathized with the sufferings of a slave; nor and domestic endearments; which has marked swelled with the mighty hope of delivering a and checkered his past life with misery and nation. The district attorney, in his opening misfortunes; but which I hope will, hereafter, address to you, did not permit himself to adopt make him the illustrious instrument of redeemthose calumnies in their entire extent; he is ing from bondage a noble country, highly faincapable of doing so, for his sentiments are vored by nature, but desolated by man-a liberal, and his manners mild. Sufficient, how-wretched country, in which the blessings of ever, fell from him, to give to them somewhat of color and countenance, and to enlist your passions and prejudices against General Miranda, and all concerned in his expedition, among whom he charges the defendant with being one. In particular, I remember, he termed Miranda a fugitive on the face of the earth, and characterized the object of the expedition as something audacious, novel and dangerous. It has often struck me, gentlemen, as matter of curious observation, how speedily new nations, like new-made nobility and emperors, acquire the cant and jargon of their station. Let me exemplify this observation, by remarking, that here, within the United States,

heaven wither before the touch of tyranny.

When the armies of France seemed to be the vanguard of liberty in Europe, we find Miranda among her most distinguished generals. From the rulers of that republic he received promises and assurances of assistance for his long-meditated project; but alas, gentlemen, the promises and assurances of governors and rulers are only calculated to deceive those who confide in them to their ruin. Spain, having made peace with France, asked for the sacrifice of Miranda; and it seems, gentlemen, that when two nations are at peace, if one of them asks from the other for the sacrifice of an individual, the demand is irresistible. Miranda was dragged before a rev

olutionary tribunal; but that body, composed | also because I trust they will induce you to on somewhat of jury principles, feeling, as I hope every thing partaking of the nature of a jury always will feel, indignation at being made the instrument of such an abomination, loosed and liberated the devoted victim.

From France he passed over into England;

But to his country turned with ceaseless pain, And dragged, at each remove, a length'ning chain. In England, had General Miranda consented to a transfer of dominion over his country, and to its being subjected to the British crown, he might have arrived to the highest military honors and fortune: but this man, who is accused of being a political intriguer, rejected with disgust the proposals of that intriguing cabinet, and took refuge in America-"the world's best hope."

Here, having soon perceived the clouds which were gathering in our hemisphere, he fondly hoped that the storm would roll towards the Andes, and that the thunder of heaven was at length about to burst upon Spanish domination. With what assurances or promises, with what hopes or expectations he left our shores, it is not, perhaps, permitted to me to assert; but if his object be to give happiness to the wretched, and liberty to the slave, may he fulfil for his country the omen that is contained in his name -a name that surely indicates no common destiny. For in whatever clime the contest is to be carried on; whoever shall be the oppressor of the oppressed, may the Almighty Lord of Hosts strengthen the arms of those that fight for the freedom of their native land! May he guide them in their counsels, assist them in their difficulties, comfort them in their distresses, and give them victory in their battles!

scan, with a severer scrutiny, any allegations of criminality in men, whose objects and conduct, even as imputed to them, when judged of on the broad and universal principles of human rights, of morality and justice, and when estimated by their tendency to promote the improvement or happiness of mankind, mut appear essentially meritorious and honorable.

It is not, however, gentlemen, exclusively on these broad and universal principles, that you are required to decide this cause. The indictment rests on more circumscribed and partial foundations, which, although they will not receive equal respect from the world at large, and will probably never be thought of by posterity, must still be submitted to your peculiar attention. The indictment is framed on a certain statute of the United States, concerning which, permit me to make a few preliminary observations. This statute, when first enacted, was merely temporary, and for a very short duration. The attorney-general, in his opening, stated the present to be the first trial that has taken place on this section of the law, and that it was enacted to prevent certain enterprises set on foot by M. Genet, at that time the French minister, in favor of his own government. A somewhat different history of the law has been this day given, by which it would appear, that expeditions, similar to the present, were not within the contemplation of the legislature; it has been stated, and I believe correctly, that this law was made with a view to certain land expeditions, then forming, under the influence of French counsels, within the boundaries of the United States, against the Floridas. And it must be confessed, that the words of the act most peculiarly and naturally apply to military expeditions, or enterprises by land; neither the Respecting the character of the defendant, word maritime, nor any other substitute for it, Colonel Smith, it is surely unnecessary, gentle-having gained admission into the law. If, howmen, for me to trouble you with many words. He is an old revolutionary officer, that fought under the eyes, and lived in the family, of the illustrious Washington, whose honorable certificates he bears, as the monuments of his fame. The war for independence, that kindled in him and General Miranda the same love of liberty, by its consequences connected them in the strictest friendship. It is, therefore, natural to suppose, that Colonel Smith may have become acquainted with many of the secret wishes and views of Miranda; but for whatever part he may have taken, if, in truth, he has taken any part in promoting the expedition of which you have heard so much, and whatever may be your verdict, he has already suffered the anticipated punishment of removal from an office, which, to an exemplary son, brother, parent, husband, and friend, was the sole support of himself and family.

I have thought it necessary, gentlemen, to premise these observations for the purpose of removing any unfavorable impressions, under which you may have hitherto labored; and

ever, the attorney-general's statement be correct, and that this temporary statute was directed against M. Genet, let the singular circumstance which marks this trial, be a beacon to warn political men against the unnecessary making of severe laws, from temporary or party motives: for who would have thought, when this clause was enacted, in the vice presidency of Mr. Adams, with direct hostility to M. Genet, that the first person who should be tried under it, would be the son-in-law of Mr. Adams; and that the first judge, who should preside on such a trial, would be the brotherin-law of M. Genet! And while I hold up this strange coincidence, as a warning to statesmen against the abuse of temporary power, let it be a caution to you also, gentlemen of the jury, not to be induced, by occasional or party feelings, to give to such a law as this an overstrained or severe construction; for if you do,

*The statute, here referred to, was passed June 5, 1794

and was entitled, “An act, in addition to an act for the punishment of certain crimes against the United States."

God knows how soon it may recoil upon your- | upon to give to it an extended interpretation, selves.

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under pretence of enforcing the law of nations; We are told, however, that this statute is but should, on the contrary, be careful to conentitled to peculiar respect, because it is declar- strue it strictly in favor of the accused: pursuatory of the law of nations; and as some sen-ant to the acknowledged principle, that all penal timents of that kind were expressed by the statutes are to be strictly construed. court, I feel inclined to treat them with the Before you proceed to a minute examination greatest deference. To me, however, I confess of the testimony in this cause, while the host of it does not appear that this statute has any cha-witnesses that were examined, are passing in racteristic of a declaratory law: it is tempo- review before your minds, you must doubtless rary and penal; it fixes penalties not known to be struck with the immense chasm that is caused the law of nations, and in creating crimes, goes by the absence of those officers of government, beyond that law; for it punishes the inchoate and other persons, whose attendance we have acts of parties, and almost their very intentions, fruitlessly endeavored to procure. Perhaps although the law of nations confines its punish- that very absence renders them more decisive ments to actual aggressions. If it were a de- witnesses in our favor. Tacitus, the Roman claratory law, wherefore should it be limited to historian, speaking of the funeral procession of a temporary duration? The law of nations is Junia, a noble lady, in which, according to the universal and perpetual; the fair exposition of custom of her country, the images of her anits meaning should be so likewise. I have cestors were displayed, but in which, from comshown it was not intended to be perpetual; pliment to the existing government, those of neither is it universal. What civilized state in Brutus and Cassius were studiously kept back, the world has a statute similar to this? Eng- remarks that Brutus and Cassius were pre-emiland has acts punishing crimes against the law nent above the rest, from the very circumstance, of nations, but none in its nature or object that their images were not to be seen. analogous to this. America did very well with- the course of this trial, I trust you will feel that out such a law, until a temporary circumstance, the most pre-eminent and important witnesses, in the ebullition of party contest, gave it birth; those which in this State prosecution speak and then Congress seemed to feel that in de- most conclusively to your consciences as honest parting from the policy of other states, it was men, are the heads of departments, and the making a dangerous experiment; on no other other gentlemen upon whom we rested that principle can you account for its having limited broad defence, by which we were willing to the existence of the law to so short a period as abide and to disclaim any minute or strict contwo years. Neither is this statute necessary structions of the law. Now, however, that we for enforcing the law of nations; that law is are forced to take refuge within those minute part of the common law of England and of the and strict constructions, let me entreat you to United States, and if any man offend against it, keep in remembrance, that there is not only no he may be punished, without the intervention moral guilt in the alleged expedition, with a of this statute. concern in which we are charged; but that, when judged of by those unchangeable principles which we invoke, it is entitled to universal commendation; let me remind you that we are forced to answer this charge at the present moment under circumstances of very peculiar hardship; let me direct your attention to those adversaries of every description, which appear marshalled against us; and let me call upon you, gentlemen, appointed as you are to be a bulwark in favor of the virtuous and innocent, to stand for them between prosecution and pun ishment; let me require you to avail yourselves of that unquestionable right, which, in a free country, I hope a jury will always possess, and which in a State prosecution I hope a jury will always exercise, of deciding in criminal cases, both upon the law and fact. Nor will your doing so, in the present instance, impose upon you any very difficult task; for no complicated questions of law can now arise. There is only one principle to be kept in mind, that penal statutes are to be construed strictly, so as to prevent the penalty's being inflicted upon any one, who has not offended against the rigorous construction of the law. In making that construction, gentlemen, you would derive no assistance from an intimacy with legal learning;

The foregoing observation leads me to notice an argument urged yesterday, by the learned judge from Connecticut, who appears at this bar as a counsel for the prosecution. He facetiously jumbled together, the Medes, the Perses, the Elamites, the Syrians, the Egyptians, as the persons employed in Miranda's expedition; and having contended that from their want of commissions, they might, if taken, be executed by Spain as pirates, he necessarily inferred that they were also indictable under this statute. The force of that conclusion does not strike me; for I can easily conceive many cases of piracy, which do not fall within the purview of this law. Suppose Congress had actually declared war against Spain; even then the fitting out of a military expedition by private citizens, without a commission from government, would be piracy; but most assuredly it would be no offence against this act. From his argument, however, I should draw a very opposite conclusion, and urge on you, gentlemen, that as offences against the law of nations can be punished both at home and abroad without the intervention of this statute; as they are punished in every other country without the existence of any similar statute, you should not be called

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a correct knowledge of your mother tongue and | first, and indeed the only one, who deposes any of the ordinary meaning of the words and phrases used, is amply sufficient. No adjudged cases or precedents can be cited as to the interpretation of this act; no assistance can be derived from the exposition that similar laws may have heretofore received: for no similar law exists in England or elsewhere. The maxim, that penal statutes are to be strictly construed, is indisputable; under the guidance of that polar principle examine the act; apply the evidence to each of its clauses; and I am much mistaken if you do not find yourselves fully competent to form a correct decision, as to the meaning and application of the law, without embarrassment, or difficulty.

The attorney-general, in his opening address, adopted the arrangement which a perusal of the statute naturally suggests, by examining into the facts which are to combine together to constitute the crime, in the order in which they are found in the act. My associates have pursued the same course; and it seems to me that you cannot adopt a better method of analyzing this law, and of examining whether all the facts that enter into the formation of the offence, be proved, than by considering every member of the sentence separately and in the order of construction. To proceed then thus, the defendant cannot be found guilty, unless it be proved to your satisfaction, that within the territory or jurisdiction of the United States, he began, or set on foot, or provided, or pared, the means of an expedition, which must be proved to be a military expedition or enterprise; it must also be proved that such military enterprise was to be carried on from the United States against the territory or dominions of some foreign prince or state; and it must lastly be proved, that such prince or state was one with whom the United States were at peace.

thing respecting his providing or preparing the means for the expedition, whatever its nature or object may be: let us, therefore, bestow upon him a few moments' attention. You will, I trust, agree with me, that very little weight is due to his testimony, when you reflect that a person was brought here, with whom he had negotiated, who was not made the dupe of his capricious and unauthorized lies. One was to carry the mail; another was to be of the President's guard-and so on. This man having implicated himself in a great mass of criminality, by entrapping the unsuspecting with falsehoods of his own invention, comes here to elude the punishment, which, from his wanton lies, he deserves better than any of the accused, and purges himself by swearing against Col. Smith; but I ask you, gentlemen, is such a man, so circumstanced, to be relied on against such a man as Col. Smith?

In order to probe the credibility of his witness, and to expose his motives clearly before you, I asked him, as you may remember, if he was not afraid of a prosecution, and he answered no; I then asked him why he was not afraid of a prosecution; the answer to that question I was not permitted to obtain. Let me, however, repeat it to you, gentlemen, why is that man not afraid of a prosecution? His conduct, as confessed by himself, not only lays him open to it, but his aggravated impositions seem to depre-mand it. Why, then, after so many indictments have been preferred and found on this subject, is he not afraid of the punishment due to his misconduct? Either because he has made an absolute contract for impunity, if he gives important evidence, and then he stands here as an accomplice turned informer, the most odious and questionable witness that can be produced: or, if he has not made such contract, he hopes at least, that by fixing the offence on Colonel Smith, he can withdraw himself from dangerand feels, therefore, the strongest and most direct interest in attaching the whole weight of culpability on the defendant. The question I proposed, until I was better instructed by the decision of the court, seemed to me to be one of the fairest that could be put, on a crossexamination; why any opposition was given to the witness's answering it, I cannot pretend to say; but that kind of protection afforded to an avowed approver, will perhaps assist you in deciding what degree of importance you will

As to the first point, that whatever was done, was done within the territory or jurisdiction of the United States, there is no dispute. But what proof have you that the defendant either began, or set on foot the expedition, whatever it may have been? Colonel Smith, it appears, knew that Miranda had some plan to be put in execution; but the whole course of the testimony goes to prove that he declined being concerned in it, without the approbation of the President; how then can he be said to have begun or set on foot an expedition, which was planned by Miranda, and which the defend-attach to his testimony. ant would take no part in, till it was laid before and approved of by our executive? Besides, if you examine the facts in chronological order, it will be very apparent that Colonel Smith did not begin or set any thing on foot.

Captain Lewis and Mr. Armstrong purchased arms, &c., several days before Colonel Smith is alleged to have done any thing. Amidst the multiplicity of witnesses produced, none of them has said any thing about the defendant's beginning or setting on foot, and Fink is the

I may be mistaken, but it appeared to me, as if there was a design of imputing to the defendant the misrepresentations of Fink as his agent; and that, therefore, all the men who had been entrapped were made to state those misrepresentations over and over again, with the view of rendering the defendant unpopular, and of fixing on him a considerable stigma; but let me ask you, gentlemen, is there the slightest reason to suppose that he authorized those misstatements? They are abhorrent from his nature

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