in the offices. If one clerk is entitled to this privilege, so is every other, on the ground of being an executive agent. Suppose a case of treason or murder: would the court admit of such an apology for refusing to the person indicted compulsory process? It is monstrous to suppose that they would. Why then should it be refused to us in the present case; is the punishment to which the defendant is obnoxious of so trifling a nature, as to render his conviction or acquittal a matter of indifference? No, sirs, the defendant is exposed to punishment extremely severe; he is subjected to a penalty of great amount, and to imprisonment in the common Bridewell, among the vilest felons who are separated from the community. Shall he be exposed to all this, deprived of that shield which will cover him from this ungenerous attack; for the testimony we have sought and which the court can furnish will be to us that shield of defence.

Will it be admitted as an excuse that the gentlemen can-1 not attend at this time because the affairs of the nation rest upon their shoulders? But it is intimated in their letter, that their official employments will always interfere whenever the defendant may require them as witnesses: in that case we cannot issue an attachment either now or hereafter. Yet it is no uncommon thing to find these gentlemen absenting themselves from the seat of government for months at a time, for their own pleasure or business. It is hard indeed that they cannot devote a few days to the fate of a fellow-citizen.

I humbly hope that I have satisfied the court that they have power to issue the process we pray for, and that no sufficient excuse has been or can be offered for disobeying the subpoenas, and that therefore the attachment ought to be granted; if not for the purpose of bringing in the witnesses to testify, which is now our object, at least I think the court will be of opinion that they ought to compel the witnesses to appear and answer the contempt.

I now proceed to inquire whether the testimony which we expect to obtain from these witnesses may not be given in evidence, when the defendant is on his trial.

And here we say it may be given in evidence either in mitigation of the punishment, or as a justification. If not as a justification, certainly we shall be allowed to offer it in mitigation; and the proper time to offer it in mitigation is on the trial. There is no doubt but that circumstances in mitigation may be offered to the court after the verdict.

If a defendant is so fortunate as to be able to obtain such testimony after he has been pronounced guilty by the jury, the court will undoubtedly listen to it. But the laws do not put it in the power of a defendant to compel a witness to appear and testify in his behalf unless it be on the trial of the issue.

It is as much the right of the accused to lay before the court testimony which may tend to lighten his punishment, as it is to offer testimony that will entirely exculpate him. Is it not as unjust and unreasonable that a defendant should be subject to three years imprisonment when he can show that he ought not to suffer three days confinement, as it is that he should be convicted when he is not guilty? If, therefore, there is no other mode of obtaining the mitigatory testimony but by the witness appearing upon the trial, the court will oblige him then to appear. Let us ask, has the law provided any means by which the defendant can compel a witness to give an extra judicial deposition in any criminal case; or is there any process by which the defendant can compel a witness to appear in court after the trial? We answer with confidence that there is none. Such a thing has never been heard of, and the counsel for the prosecution, we are certain, cannot point out to us any means by which we may oblige a witness to give the testimony we expect, if the court should say they would hear it after the trial. It is true, indeed, where witnesses have voluntarily made affidavits of this nature, the courts have received them after the issue has been decided. But can a matter of this importance to the accused depend on the mere will and pleasure of another? Every notion of justice is opposed to such an idea. And if there be no certain mode of obtaining this testimony but by examination of the witness on the trial, the court will oblige him to appear. We are, however, not without authority on this subject. In the case of the earl of Anglesea, indicted for a misdemeanour, reported in 9 state trials, 305. it was expressly decided that circumstances in aggravation of the defendant's offence might be given in evidence on the trial. Now, if circumstances in aggravation may be offered on the trial of the issue, a fortiori it must be lawful to give in evidence circumstances of miti gation. For, as it is better that a guilty person should escape punishment rather than that an innocent one should suffer unmeritedly; so it is better that a guilty defendant should escape with too light a punishment rather than that he should suffer more than he deserves. This case of the

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earl of Anglesea is a very strong one in our favour: the point now before the court was there debated and received a decision which supports the principles for which we now contend. So in many instances have the courts allowed a defendant to give evidence of character, where the character of the defendant could have nothing to do with his guilt or innocence: M'Nally, 320, 323, &c. But we may appeal to universal practice on this subject. Is there a lawyer who hears me that will say he ever knew testimony of this kind refused by a court on a trial? and is it not admitted every day? I hope, therefore, the court will say that although we may only offer this testimony in mitigation; yet the witnesses must be compelled to come here and give us the benefit of it.

We, however, go farther, and offer this testimony not merely as mitigatory, but as relevant to the issue, and as a complete justification of the acts with which the defendant is charged. We say by the affidavit that the witnesses will prove that what the defendant did, he did with the knowledge, consent and approbation of the president of the United States; and if they do prove this the defendant must be acquitted.

Let us suppose that we could prove that the acts charged against the defendant, were done by the express order of the president of the United States; would not such an order be a complete justification? That the president might have authority to give such an order, cannot be questioned. Congress have the power of declaring war; and when that is done the president is to act under it, and may authorise any military or hostile measures against the enemy. If it be said that there was no declaration by congress, it is sufficient for us to answer that there might have been. The constitution does not require that a declaration of war should be made public; it would be absurd to suppose that it did, and that thereby the executive of this country was to be deprived of all chance of taking an enemy by surprise, or of the advantages of secret measures of defence or offence. It is well known, that at the time general Miranda's expedition was set on foot, con gress were sitting with closed doors, and might have, nay, it was universally believed that they had, declared war against Spain. If they had done so, the president would have had constitutional authority to sanction the acts for which the defendant is now to answer; and will it be said that the individual acting under the order or sanction of the chief magistrate of the country, who might have had authority to give that

sanction shall be answerable criminally for what he has done pursuant to that order. Must he inquire whether the chief magistrate was or was not authorised to give the order, and must the defendant be punished if it turns out that the president has acted illegally. No; it would be an oppressive and tyrannical doctrine to say the defendant may be charged with a crime under such circumstances. The defendant had only to inquire whether the president gave him an order which might be within the scope and limits of his constitutional functions, and if it was so, the defendant cannot be punished for his obedience. I will not take up the time of the Court longer on this part of the subject, or detain it with any argument to show that when we have proved that the defendant acted with the knowledge, consent, and approbation of the president of the United States, it must be equivalent to proving that he acted under an express order.

But let us suppose that the testimony we offer would not make out a justification according to the strict legal acceptation of that term, still we say it would form such an excuse for the defendant as would entitle him to a verdict of acquittal.

If the defendant can satisfy the jury by the testimony of the witnesses whom he now calls, that he had no intention to disobey the laws, but on the contrary that he thought, and had reason to think, that his conduct was sanctioned by their au thority; and that he would merit the approbation of his government, and the applause of his countrymen, he will not, he ought not to be convicted.

Where there is no intent to do wrong, there can be no crime. This is a principle not derived to us from tradition or record ; it is in the heart of every man, is imbibed with our reason, and cannot be obliterated while a sense of justice, or knowledge of right and wrong is retained.

I expect to hear it said, that if this principle be applicable to all cases, then an ignorance of the law will always be an excuse for an offence. Sir, I say it will be so whenever a defendant may have it in his power, clearly to demonstrate that he was ignorant. As if a law should this day be passed at Washington, against the exportation of arms, and a person to-morrow, before he could possibly have knowledge of the existence of such a law, should make a shipment contrary to the prohibition. I say no jury on earth would convict a defendant under such circumstances. No court on earth would tell a jury, that in such a case, they ought to convict. But as it may, in many cases, be impossible to prove on a defendant a knowledge of the law, he is very wisely charged with it. In the first instance it is always

to be presumed that every citizen is acquainted with the laws of his country, and that presumption must stand agains him till it is destroyed by decisive and irrefragable proofs

And so it is also with respect to the intent. If an offence is committed against the laws, it is to be presumed that there was an intent to offend until the contrary appear. But when that does appear, the presumption is destroyed, and the accused is exculpated. The testimony we would offer, may then be heard if only for this purpose, if only to take away that presumption of criminal intent, which the law very wisely and necessarily raises against the defendant.

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But whether this testimony may be a justification or excuse, it ought to be submitted to the jury. They are the judges of the law, and the fact. And all the facts ought to be brought before them, that they may apply the law. do not mean by this that a party is to be at liberty to offer any sort of testimony that he may please, but he has an unquestionable right to submit to the jury every fact that has any relation to the crime with which he is charged.

There is another ground, also, on which the jury ought to be permitted to hear this testimony. It has become a practice for jurors to recommend a convict to the mercy of the court, where they think he deserves it. This practice is sanctioned by so many instances, and by such a length of time, that it may now be considered as a right, and if it be so, then certainly the jury ought to have every circumstance before them, which will assist them to determine whether they will recommend or not.

It may be proper, in order that the court may see the full applicability of the testimony we expect from the witnesses who have been subpœnad, that I should mention the other testimony that we expect to offer in connection with it. We shall show from the journals of congress, when their secret sessions began, and how long it continued. We shall prove that it was universally believed that congress had secretly passed an act for going to war with Spain. We shall read the president's message at the opening of the last congress, and a variety of documents communicated by him, on the sixth of December. And we shall then, from proving the notoriety of the preparations for general Miranda's expedition as well here as at Washington, and by a variety of other circumstantial testimony, bring home to the president the knowledge we impute to him.

Thus, may it please the court, I have endeavoured to establish the power of the court to issue the process for which

* See Appendix.