tries. But if the foreign power, shall itself have broken that amity, and shall have given just grounds of war, no government ought to omit " providing and preparing the means" for military enterprises; nor could any law have intended to prevent the preparatory efforts of individuals for subduing the public enemy.— The memorable congress that commenced your revolution did not hesitate to provide and prepare the means of meeting the English before actual war was declared; nor did it censure or discountenance those patriots, who, unauthorised by any orders, and before the formal declaration of war, possessed themselves of Ticonderoga and Crown Point.

The circumstances of the times, we have shown, justified the president in giving his approbation, and my client, under that approbation, in providing and preparing the means of a military enterprise against Spain. And surely no enterprise could be more useful or effectual for drawing the enemy from our southern and western frontiers; none more worthy of the exalted and philosophic mind of our chief magistrate; none more consonant to the enlightened and philosophic views of society and politics, which he has exhibited to the world, than an expedition to liberate South America; to destroy at once Spanish tyranny and power on our own continent; to enfranchise, by one effort, millions of our fellow creatures from the most frightful bondage; and to lay the foundations, in so large a portion of the globe, for the freedom and the happiness of man!

PATERSON, J. You state in the affidavit that it was done with the knowledge and approbation of the president, but is it stated in the affidavit that he authorised the fitting out of the expedition?

Emmet. I conceive it was not necessary; for though I have argued upon the effects of an authorisation, it was only to show that the argument of the adverse counsel went much too far, when they contended that the president could not authorise any such measure. For our defence, it will be only necessary to show that the president was, under the circumstances of the times, warranted to provide and prepare the means for a military expedition; and that in what he might do, we acted with his knowledge and approbation. Qui prohibere potest et non prohibet, jubet. The knowledge and approbation of the chief magistrate and heads of departments, if we shall prove them to have been sufficiently express and positive, will amount to a justification; but even if we should fail in establishing them to that extent, they will still afford very powerful inducements for mitigating the punishment.

This is denied on the other side; but I would ask, if it could be proved that this enterprise was carried on against the president's express order, would not that be matter of aggravation? If it would, surely the reverse must be matter of mitigation.The mistake, into which a defendant may have been led by the

approbation of the government, and the innocence of his motives must surely mitigate a discretionary punishment. In this case we do not rely upon a mere general and vague approbation of the measure; we shall show that approbation was given to this very defendant's being concerned in it.

We are told, however, that no evidence, which only goes in mitigation of punishment, should be laid before a jury; but that it is only cognisable by the judge, who is to apportion the punishment, and that therefore the want of it forms no ground for putting off the trial. This doctrine, permit me to say, is contrary to every day's experience; for who, that has attended the commonest trials for assault and battery, does not know that all matters connected with the crime, though not making any part of the issue, whether they preceded, accompanied or followed the fact charged, are given in evidence on the trial, and that the judge, after hearing those matters, varies his sentence, according to the case, from perhaps one cent to a very exemplary fine and imprisonment. But what reporters can we quote on this subject? I verily believe that no lawyer, who ever undertook to report a case, thought this a matter of sufficient difficulty or importance to be worth noting. It happens, however, that we can cite a printed case in which the point has been decided, and that only, because the trial having been taken verbatim, the most insignificant circumstances attending it have been preserved. The case I allude to is that of the earl of Anglesea, in the 9th State Trials, p. 335. There, although it was resisted by the defendant's counsel, the counsel for the prosecution stated and proved matter of aggravation, entirely distinct from the assault on which the indictment was framed; and the court considered his right of doing so as unquestionable. It has been asserted on the other side, that the facts stated, accompanied the assault, and therefore were necessarily admitted; but if so, how came the defendant's counsel to resist their introduction? On looking into the case the court will find those facts, which were introduced for the purpose of aggravation, happened the two days preceding the assault. A distinction is also taken, that what was there stated, was in aggravation, and that what we wish to introduce before the jury, is in mitigation of punishment. What principle of law sanctions this distinction? Those who have a right to hear the one surely have a right to hear the other. Unfortunately also it seems contrary to the case of the King v. J. Mockler, 1 M'Nally's Rules of Evidence, p. 320. where Downes, justice, admitted evidence of character on the trial for uttering counterfeit coin; as the punishment was not certain, but discretionary in the court.

But the counsel on the other side maintain, that such evidence must have been received to meet the issue of not guilty; it being very unlikely that a person of good character would be guilty of such a crime. To this surmise, the answer is obvious; that

was not the reason assigned by the court. It happens also that I was concerned in that cause for the defendant, and have such a recollection of it, as enables me to show the learned counsel's supposition to be groundless. The fact was clearly proved and indeed admitted; but the defence was, that the defendant was a silver-smith, and made out of pure metal, shillings which were rather more valuable than the current coin, which by being worn down was not worth more than nine pence, and of which there. was an actual scarcity. This certainly formed no legal defence; but on its being proved that the counterfeit was as good as the current coin, the judge admitted evidence of character, not to controvert the guilt, which was unquestionable; but that it might be considered in mitigation of punishment.

The Chevalier D'Eon's case (3 Burr. 1513) is very much relied on by the opposite side, as proving that evidence in mitigation should not be received on the trial; but that it should be laid before the judge, after verdict, by affidavit; and that the want of it forms no ground for putting off the trial. Let us, therefore, shortly examine that case. The first position is supported, as the counsel think, by this expression of Lord Mansfield : “ If "their knowledge relates to any circumstances that may serve "to mitigate the punishment, in case he should be convicted, "that sort of evidence will not come too late after conviction of "the offence, and may be laid before the court by affidavits." True, it will not come too late after conviction; but has his lordship said that it would come too soon before verdict? True, it may be laid before the court by affidavits; but has his lordship said that it ought not to be laid before the court viva voce, on the trial? That sentence, however, has been misconceived by the learned counsel; it only refers to the peculiar circumstances of D'Eon's case, and does not purport to lay down any general principles whatsoever. This will instantly appear by comparing the report of the same case, in Sir W. Blackst. 510. with that in Burrows. motion was made in Trinity term; the trial could not take place till after that term; and, as it was an information, judgment could not be given till the November or Michaelmas term; and Mr. Morton and Mr. Ashhurst argued, I confess, I think unanswerably, for putting off the trial, that it could not, at the utmost, cause above eight days' delay as to the sentence, if the defendant should be ultimately convicted. Lord Mansfield, however, said in substance, your witnesses are out of our jurisdiction in France, and it is not either in your power or ours to compel their attendance; but you expect them here, you say, next term; they will therefore come, if at all, before sentence; and as they can be only in mitigation (this being an information for a libel, which admits of no justification) you can still have the benefit of their testimony, though they should not be present on the trial; their evidence will not come too late next term (when you expect

The

them) after your conviction, and you can lay it before the court by affidavit. This is the true explanation of that sentence on which the opposite counsel so much rely; and permit me to observe upon that case, even were it more favourable for them than in reality it is, that, since truth is settled to be an inadmissible jusification on an indictment for a libel, it is manifest the exclusion of those witnesses on the trial of the issue, worked an injustice to the defendant. Indeed, any one who now examines that decision with impartiality, will, I think, be convinced that the defendant was very hardly dealt with; and, what surely will not recommend the precedent to this court, it appears from 1 Sir Wm. Blackst. 517. as if this hard treatment sprung from a spirit of complaisance to certain foreign ministers.

The case, however, affords no ground for arguing, that matter in mitigation of punishment should not be given in evidence on the trial and every day's experience shows that it may. Even for the information of the judge, if he alone is to take cognizance of the testimony, it is adviseable that he should be informed by viva voce examination, which is superior to written affidavits, and which affords the advantage of sifting out the truth by pointed and cross examination. Besides, if we are not allowed compulsory process for enforcing the attendance of those witnesses before the jury, and a postponement of the trial till they can be brought into court, by what process or authority of law are we to obtain their affidavits in mitigation of punishment? I know of no process, by which you can compel any man to swear an affidavit: and here, let me observe, that in the Chevalier D'Eon's case, his 'witnesses he admitted were friendly, and were willing to be examined there was therefore no danger but that he could procure their affidavits after conviction. Col. Smith does not pretend that his witnesses are friendly, or willing to be examined-How then, I again ask, if this trial should not be postponed until the attendance of the witnesses can be enforced and their evidence obtained under a compulsory process, is the defendant to procure those affidavits, which might be laid before the court, and ought to diminish the punishment?

Besides, it is the right of the jury to recommend to mercy; and how can they do so, if no extenuating circumstances are permitted to reach their ears? The president's approbation and knowledge are facts, which, like most other facts, may be contested, and upon which, therefore, the court entertain some doubts. Would not the recommendation of the jury, finding those facts and grounded on their declared belief of them, have infinite weight in removing the doubts of the court and influencing its conduct? Indeed, from every view I can take of the subject, I am convinced that the original and correct mode of receiving any testimony, whether to the issue, or in aggravation or mitigation of punishment, was viva voce on the trial; and that the introduction of affi

davits after conviction, is a modern and irregular invention, tolerated for the convenience of the defendant, to whose benefit it has hitherto been most frequently applied: but I confess I am surprised to hear it argued, that the innovation should totally supersede the ancient, and I think the wisest practice.

Another reason for putting off the trial, presents itself from an examination of D'Eon's case coupled with Col. Smith's affidavit. In that case, the defendant gave some reason to believe that the witnesses were prevented from attending by the interference of the prosecutor; and Mr. Justice Wilmot declared (1. S. W. Bl. Rep. p. 516) that if that were clearly established, he should be for putting off the trial for ever. In this case, Col. Smith swears that he believes those witnesses are prevented from attending by the interference of the president, who has directed this prosecution. The fact is not denied, and what might be a justification of the fact, is not sworn to. Upon that ground, which is admitted to exist with us, and which Lord Mansfield said in D'Eon's case (3 Burr. 1515) would be sufficient for putting off the trial, till the witnesses could be had, we ask, even if you should be against us on the other points, that the trial may be postponed.

I have trespassed so long on the time of the court, and on the debilitated health of one of its members, that I know not what apology to offer-I shall not encrease my offence by any longer intrusion, except to return my thanks for your very patient and favourable attention.

Harison. I am now to close the argument on the part of the defendant, and to offer my sentiments upon a subject that is nearly exhausted. A sense of the duty I owe to my client, and a regard to public justice are the motives by which I am influenced and which I hope will apologize for observations that may appear to be superfluous, and perhaps have been already offered.

Before, however, I proceed to the main questions that have aris en, I beg leave to advert to an observation which fell from the counsel for the prosecution. He indeed declared our form of government to be the best in the universe; in the preservation of which every citizen was of course deeply interested. And yet, he expressed great surprise that a prosecution such as this, which he considered as of a very ordinary nature, should bring together so numerous an assembly, and excite such universál interest and attention. Perhaps this observation might have been spared; for without adverting to the previous proceedings in this case, the nature of the prosecution, and the high authority by which it was instituted, would sufficiently account for the effects it has produced. For my own part, believing the criminal system of the United States to be the most pure and chaste and mild and perfect that the world ever beheld, in fact, I consider it as a most valuable inheritance belonging to the citizen. It has therefore called forth the public attention; and the numerous audience that is assembled up