and character; and surely it was not necessary | military expedition's being fitted out from this that Colonel Smith should suggest untruths to port; even supposing that, at St. Domingo, Fink, in order to assist him in a project of when the defendant had no longer any conneckidnapping. That man's imagination seems to tion with, or control over it, it may have assumed me to furnish sufficient funds, whenever he may a military appearance? As between New York think fit to draw on it, for a falsehood. A re- and Jacquemel, there is no evidence not permarkable instance occurred of the attempt to fectly reconcilable with commercial objects; fix this stigma on Colonel Smith, in the pro- and no further than that port, does the defendduction of what is facetiously called the muster- ant appear to have any concern with providing, roll. The heading of that paper, proceeded or preparing, or setting any thing on foot. The from the defendant, and after it was gone men who went in the Leander, went to St. Dothrough, these words, "for the President's mingo as passengers, in a civil capacity; it was guard," were significantiy read as endorsement not until after their arrival there, that they ex-but, on further inquiry, it turns out that the changed their liberty for the submission of solendorsement is not in Colonel Smith's hand-diers; and until they had consented so to do, writing; that it was put on after the paper had been given out of his hands, and in short, as I presume, that it is one of the witticisms of Mr. Fink.

men cannot be said, under the strict construction requisite for a penal statute, to have been provided for a military expedition. Therefore, on this point also, the evidence for the prosecution has failed to attach any criminality to Colonel Smith.

The next question that presents itself for consideration, taking the statute for our guide, is, supposing you have evidence enough, independent of extrajudicial rumors, to make you say the ultimate object of this expedition is military, yet does it come within the description of a military expedition to be carried on from the United States against any foreign prince? In

This paper, however, is urged as evidence that Colonel Smith provided the men named in it, for a military expedition. Before I consider what was the object of the expedition, let me insist upon a fact, which is amply proved by the testimony before you, that the contract made with Fink, as the agent of Colonel Smith (even should you believe that suspicious witness), was rescinded by mutual consent; and that after the men were at entire liberty, they entered into a new contract with Captain Durn-order to make you perceive more clearly the ing, under which they embarked-so that even supposing every thing said respecting the military nature of the expedition to be true, the defendant did not, in contemplation of law, provide the men who went in the Leander. In every criminal case there is a locus pœnitentia, and Colonel Smith profited by it. By annulling the first contract, he is released from all criminal responsibility-and he cannot be swerable for any new contract entered into by those men, with a stranger.

importance of the words "from thence," in the statute, I shall follow the example of my learned friend who opened our defence, and read the section without those words, "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 against the teran-ritory or dominions of any foreign prince," &c. If this were the law, it would undoubtedly comprehend the preparing and providing within Let us now consider what evidence there is, the United States, of the means for a military that this is a military expedition. Commerce expedition; even though those means were to in arms and ammunition was unrestrained, and be transported from the United States to some vessels allowed to arm themselves as they | other place, and the military expedition to be thought fit, when the Leander sailed for Jac-carried on, from that place, against the doquemel, in St. Domingo; with which island, a lucrative and beneficial trade has been for some time carried on. Moreover, all men are at liberty to leave the United States, and whether they are paid for going, or have subscribed their names to a contract, provided it be of a civil nature, the law is not broken. The gentleman, that furnished the ship and purchased the cannon, arms, and ammunition, which were taken out in the Leander, as well as many other merchants, was long in that trade; and now for the first time, the military nature of the cargo has been made evidence of a crime. It is fully proved to you, gentlemen, that the Leander sailed bona fide, and in fact, from this to St. Domingo; and that the persons, who went out in that vessel, were to be considered as passengers; and that after they arrived there, they were at liberty, if they thought fit, to return Lack. What evidence does this furnish of a

minions of a foreign prince. Such is our case, if you should think it proved that the expedition was military; and were the law such as I have just read it, you would be forced, as far as relates to this point, to find against the defendant. But the legislature did not think fit to take cognizance of the transportation of warlike preparations from the United States to any other place, even though they were there to be used as the means for carrying on a military expedition against a foreign prince. It confined the penalties of the law to those cases where the military expedition was to be carried on, immediately, and in the first instance, from the United States; and therefore inserted the emphatic and restrictive words "to be carried on from thence;" that is, to sail directly from here against the foreign prince or nation. No such thing was done in the expedition under your consideration; for the Leander sailed with some

arms and ammunition, and with some passen- | were in such bad order that she was in no con. gers, to St. Domingo. There, and not before, the passengers were, if they chose, to enter military service, and to receive commissions; if they did not choose so to do, they were to have their expenses paid, and passages provided for them back to the United States. At St. Domingo, also, the Leander was to be joined by the Emperor and Indostan, and two schooners; and the whole, when organized into a military expedition, was to proceed from thence against the Caraccas. This, however, it is said, is carrying on a military expedition from the United States against the Caraccas, via St. Domingo. Let me repeat the question already put by one of my associates; would an insurance on a voyage from New York to the Caraccas be violated by the vessel's going to St. Domingo? As merchants, you can answer that question. Why should going to St. Domingo affect the insurance? Because it is no longer the voyage insured a voyage from New York to the Caraccas must be direct from the one place to the other, and is not the same as a voyage from New York to the Caraccas, via St. Domingo. Remember, then, that a penal statute must receive a strict construction, and what would not be a fair and sufficient description, in a mercantile instrument, of an enterprise to be carried on from one place to another, cannot be sufficient to satisfy the strictness of a penal law.

dition to undertake any military operations, and it further appears, that every person whe went out in that vessel, whatever his expected rank might be, went as a voluntary passenger to a friendly island, where he was to be at liberty to stay or return; or, if he preferred doing so, to enter into a military line, to enrol, and if he was an officer, to receive his commission. Surely, then, the friendly island, where the arms were to be put in proper order for military purposes, and where the passengers were to change their condition, and become soldiers, is the place where the expedition is to be considered as assuming a military character; and from that place you must consider it as carried on against the object of attack. The construction and force which I have given to those words, "to be carried on from thence," seem to me unanswerable; and in a case where so many motives should induce you to lean strongly towards an acquittal, you will rejoice at having found a resting place, on which your consciences may repose; and at the opportunity of absolving a man, who is free from moral guilt, and who, at the best, has been most rigorously dealt with.

There is yet another point for your consideration: supposing all the other requisites of the act to be established against the defendant, which is the very reverse of the truth, yet the expedition must be carried on against a nation But the force of our reasoning, on this point, "with whom the United States are at peace." is infinitely strengthened by the circumstance, This topic has already undergone so much disthat the Leander went to Jacquemel, not mere-cussion, that the force of our observations must ly for the purpose of touching there, but to have long since been impressed on your minds; make all the military equipments, (as the very I shall therefore be very brief. It is acknowwitnesses for the prosecution depose,) and to ledged that there are two kinds of war; one rendezvous with other ships, that were to be regularly proclaimed by the governments of two jointly concerned in the projected military countries, and one actually existing de facto by expedition. Let us test this question, not only the hostile conduct of one country against by the mercantile language of insurance, but another. So peace, the opposite of war, must also, (as the enterprise is said to be military,) be capable of receiving two explanations. Now, by the military acceptation of words. Suppose keeping in remembrance the maxim I have so a commander-in-chief ordered several detach- often impressed upon your minds, that penal ments, from different points, to rendezvous at a statutes are to be strictly construed, and that particular place, and having made the necessary every word, employed in describing the offence, arrangements, to proceed from thence against is to be received in the sense most favorable to an enemy's post. Suppose the English minister the accused, it necessarily follows, that, if one of directed embarkations from Portsmouth, Fal- the significations of the word " peace" will take mouth, and the Cove of Cork, that they should the defendant's case out of the statute, that sigseverally proceed from those places to the isl-nification must be preferred. It would be sufand of Barbadoes, and having joined forces there, that they should make a descent upon Caraccas; would it not be an expedition to be carried on from the place of rendezvous, Barbadoes, for instance, and not from any one of the places whence the detachment proceeded? So | in our case, the expedition was to be carried on, not from New York, from whence the Leander sailed, but from Jacquemel, where all the forces were to collect, by previous agreement, and from which the military departure for the Caraccas was to be taken.

Some other considerations place this matter beyond a doubt. It is proved that when the Leander sailed from New-York, the arms, &c.

ficient for me to show, that, in common parlance, and the ordinary intercourse of life, that word is frequently used in the sense for which I contend. But I shall go further, and show, that even the Congress, which passed this law, has, in its legislative acts, employed the word in the same way. For that purpose let me request your attention to an act passed the 27th of March, 1794, chap. 12, entitled "an act to provide a naval armament," (vol. 3, p. 24.) It begins by reciting, that "the depredations, committed by the Algerine corsairs on the commerce of the United States, render it necessary that a naval force should be provided for its protection." The act declares no war; Con

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sufficient to convince you that the expedition was carried on with the knowledge of government. Why then was it not prevented? Most assuredly because the executive saw that it could be carried on, and indeed was carrying on, consistently with the laws of the United States. If it were otherwise, if the expedition were a violation of the law, with such ample time for deliberation and action, would not the

laws, such as is not to be found in the code of any other nation, which was enacted from internal considerations, and in favor of other states, that observe towards us a conduct unequivocally friendly and she asks from you this gratuitous favor, as a right, while your territories are yet marked by her unequivocally hostile aggressions. Let her take the benefit of the law of nations against your citizens, as she would be obliged to do against British sub-President have exercised the power vested in jects, if they had pursued a similar conduct. The executive disavows their acts, and leaves the individuals, if taken, without national protection; surely such disavowal and abandon-me ment on the part of our executive is an ample sacrifice to the etiquette of courts. Suppose an indictment on this statute had been framed in the Mississippi territory, against any brave Americans, who, without the orders of government, might have made a military expedition within the Spanish lines to rescue the Kempers. The construction of the law that would be applicable to their case in that country, is equally applicable to the case of the defendant in New York. What then, let me ask you, would be the astonishment and indignation of a jury there, if the public prosecutor informed them, that notwithstanding these outrages were unatoned for, and perhaps likely to be repeated, yet it was expedient to sacrifice those gallant adventurers to her resentment. Would they not, by their verdict, teach the government to answer thus, to such an insolent demand on the part of Spain? Before you ask the sacrifice of American citizens, restore those you have carried away, abandon our territories, make satisfaction for your depredations on our property and commerce, renounce your hostile plans; and after you have purged away your own offences, should any new injuries be done to you, then you shall enjoy the benefit of all our laws. Let your verdict give government the same instructive lesson; you are the protectors of a fellow-citizen against the vindictive oppression of foreign states; you have the power of resisting their insolent demands; you have nothing to do with their vaporing menaces; to them I trust government has already replied, that America adopts Fingal's advice to the son of Ossian-never seek the battle with the nor shun it when it comes.

him by the seventh section of this statute, and hindered the sailing of the Leander?

To render this argument more striking, let remind you of the evidence of Colonels Swartwout and Platt, by which it irresistibly appears that the defendant had no doubt he was acting with the knowledge of government, and therefore would do nothing intentionally to violate the law. Let me, also, recall to your memories Captain Duncanson's letter, which you have read. From that letter draw your own conclusions, as to the extent of the President's knowledge; but it is certain that Captain Duncanson, who presided in Washington, was apprised of the expedition, and informed that Colonel Smith would have the disposal of some military commissions. Was he, think you, the only man in Washington, to whom those things had been told; or do you believe that the President and officers of government were ignorant of reports that had obtained very general currency? His letter is dated the 20th of December last, and the Leander did not sail until the 2d of February.

The expedition was, therefore, known at Washington, six or seven weeks before it took place, and no effort made to stop it. Surely, then, the President and Secretary of State, and other officers of government, considered it as perfectly consistent with our laws. I confess, gentlemen, I attach very great weight to the opinions of those gentlemen; I sincerely esteem and respect them all; Mr. Jefferson, I believe to be not only an enlightened patriot, and a consummate statesman, but also to comprise in his extensive information, a very accurate knowledge of the law. He had learned, I presume, that the Leander was bound, in the first instance, for Jacquemel; he knew that the foe-transporting of arms, ammunition, and military stores to St. Domingo, was not prohibited; he knew an American, as well as a foreigner, might travel; he probably considered, as I do, every person that went in the Leander, as in the eye of the law, only a traveller, till he should assume a military character in a foreign port; he saw that no military expedition was to be carried on from the United States; and he felt that there was nothing in our relations to Spain which could lay claim to the extraordinary exertion of peculiar friendship on the part of the United States; nor any thing in the object of the expedition itself, that could alarır his benevolence or patriotism. This view of the subject does justice to all parties; it marks the wisdom of the President in abstaining from

I have thus, gentlemen, examined the statute at some length, and given to it a construction, which, if you believe it correct, will undoubtedly entitle the defendant to an acquittal. I shall give you an additional reason why you should believe in the correctness of my construction. General Miranda's expedition was a subject of general conversation in this city some time before it sailed; it was carried on under the eyes of the government, and known to many, whose political communications with Washington city, are no doubt accurate and frequent. This circumstance, even exclusive of the inferences that must arise from the nonattendance of the heads of departments, is

interfering with the expedition; it marks the and misfortunes. I see gentlemen on that jury prudence of the chief by whom it was con-between whose political principles and mine ducted, and the cautious observance of the law by those who acted under him; and it will mark your discrimination, justice, and integrity, if you adopt this construction of the statute, and give a verdict of acquittal.

there is not a shade of difference-we agree as to the hands to which we would confide the offices, honors, power and wealth of the republic. I trust we also agree in this, that nothing can be more injurious to the due administration of the law, than that political considerations or party prejudices should be permitted to ascend the bench, or enter into the jury-box. That pollution of justice has given rise to many of those abominations and horrors which have

I could wish, before I conclude, to make another observation. This trial has by some been considered as a party question, and I understand that my conduct, in the defence of the gentleman indicted, has been talked of, by the weak and ignorant, as something like a derelic-disgraced and desolated Europe. I adjure you, tion of my professed political principles. I pity such party bigots, and have only to assure them, that no feelings such as they possess, shall ever weaken my zeal for my client. But as to my political principles, they are a subject on which I am too proud to parley, or enter into a vindicatory explanation with any man. In me, republicanism is not the result of birth, nor the accidental offspring of family connections-it is the fruit of feeling and sentiment, of study and reflection, of observation and experience it is endeared to me by sufferings

do not mingle the spirit of party with the wholesome medicine of the law: for if you do, most assuredly, sooner or later, even-handed justice will commend the ingredients of the poisoned chalice, to your own lips. I entreat you, exercise your prerogatives and discharge your duty in the spirit of uprightness and mercy-do not suffer the defendant to be sacrificed as a sin-offering or a peace-offering; and if he is to be made the scape-goat, on which are to be fixed the faults of others, give him, at least, the privilege of escape.

SPEECH IN GOODWIN'S TRIAL.

The following is the argument of Mr. Emmet, delivered at the trial of Robert M. Goodwin, on an indictment of manslaughter, for killing James Stoughton, in New York, during the winter of 1819.*

GENTLEMEN OF THE JURY: If I could entertain a thought, that by any thing which may fall from me on this occasion, I might advance my personal reputation, I should only cherish a vain and idle expectation: if my mind were occupied with any thing so light, I should shrink from a comparison with those able sociates who have preceded me. Still I am not discouraged from entertaining the hope, that in the exercise of my professional duty, I shall be able to add some observations, though not of equal force, yet somewhat conducive to the success which we all desire; but which I desire with different expectations from those which have been expressed by one of my associates. I know and feel that there is at stake in this trial, that, which if lost, will bring ruin on my client, and spread desolation over a numerous, amiable, and respectable family. But whether it be that nature has given to me a more sanguine and enthusiastic disposition than to others, I know not: I must confess, however, that

I address you with strong and ardent hopes. And if I can instil into your minds but half the conviction I feel of my client's innocence, his acquittal is secure.

The district attorney, in stating to you this case on behalf of the prosecution, said, that the excitement produced by the lamentable event which has caused this trial did honor to our city. He spoke truly; but he must admit that it has formed a frightful impediment to the due administration of justice. It was honorable to our community, because it bespoke universal horror at the atrocious crime imputed to my as-client: but there is another feeling capable of doing still greater honor to this city, the noble renunciation of prejudices and antipathies, formed with precipitation and error, and discarded under the influence of cool investigation and deliberate inquiry. I rejoice to perceive how rapidly they have disappeared amidst the vast assemblage who have listened to this trial, as the testimony became developed; and assuredly it will redound to the honor of this community, to find that an unprotected stranger against whom every arm was nerved, and every voice was raised under a belief of his guilt, can safely commit his dearest interest (unknown and unprotected as he is) to a jury taken from that incensed community, and receive from their patient attention and examination of his case, his own acquittal and a recantation of those preconceived opinions, which seemed calculated to overwhelm him in disgrace and ruin.

* The trial took place at the Court of General Sessions of the Peace, held in and for the body of the city and county of New York, in February, 1820.-See Sampson's Report.