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NEW-YORK, altogether voluntary, and no possible injustice could be done to the defendant by refusing to postpone the trial; for it would be useless to delay it in expectation of obtaining the testimony. Lord Mansfield proceeds to say, "if their knowledge relates to any circumstance that may serve to mitigate the punishment, in case the defendant 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."

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Lord Mansfield by no means decides, that the evidence could not be received on the trial: He only says, it will not come too late after conviction.

The chevalier D'Eon was not deprived of any benefit by the course adopted by the court on that occasion, for as they could not aid him by any process that could be awarded, they leave him in the same situation as if the trial was not postponed to his ability to obtain voluntary affidavits. Not so here; this court can enforce the attendance of the witnesses at the trial, and at no other time. If the testimony is not then received, the defendant must forego it; for after trial no compulsory process can issue; and, strange as it may seem, the defendant has a right secured to him by the constitution, which he cannot enjoy, if the court refuse to interpose its authority, and compel the attendance of the witnesses at the trial. The case of D'Eon therefore, fairly considered, is in principle with

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The

The question appears to be reduced to this single point :-the testimony we seek is material to the defendant in this cause. court can now give him the benefit of it; if they do not, he may be presented for punishment as an offender whose guilt is of the deepest dye. And is it not material to the cause of the defendant, that the extent of his offence should be known? Is it not material to his personal liberty, to his interest and his character, that the punishment should bear a just proportion to the offence? The discretion granted to the court by the statute is useless, if the defendant is deprived of the means of showing circumstances evincive of his innocent intentions, and justly demanding the utmost lenity of the court.

This subject is before the court in a way extremely inauspicious to the honour of the government of the United States. The president of the United States approving the act which he now seeks to punish-his approbation no doubt proceeded from honourable motives-from enlarged views of the true policy and dignity of our country. It deserved praise. But if he did order this prosecution, it is not for me to justify or excuse the perfidy. Let it, too, be remembered, that in the case of D'Eon, lord Mansfield says, " if the witnesses had been sent away by the person on whose account the prosecution is carried on, that indeed would have been a sufficient ground for putting off the trial until they could be had. But here, says his lordship, is no pretence for such an insinuation."

Are we not expressly within this principle? The president of the United States ordering the prosecution-and the president of the United States restraining the witnesses from attending.

To conclude-The justice of our present application must be evi dent, and unless there exists some stubborn and unbending rule of

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law to the contrary, I indulge a strong hope, that the court will NEW-YORK, postpone the trial, compel obedience to its process, and thereby become possessed of the whole truth. If so, my client has nodread of punishment: It may be nominal-it cannot be severe.

PATERSON, J. expressed some regret that it was not in the power of the parties to carry the present motion up to the Supreme Court for its opinion, which could only be done in consequence of a difference in opinion between the two judges sitting in the circuit court, as expressly declared by the law.

Mr. Sanford read an affidavit, as follows :

District of New-York, to wit. Nathan Sanford being duly sworn, deposes and says, that the offences laid in the indictments in these causes, took place in the city of New-York between the twentyfifth day of December last, and the first day of February last; that the facts which will be given in evidence on the part of the prosecution, upon the trial of the said indictments, took place in the state of New-York, and principally in the city of New-York, during that period; that during the whole of that period, James Madison, Robert Smith, Jacob Wagner, and William Thornton, were, as this deponent has been informed and really believes, at the city of Washington, and not in the state of New-York; and that, as this deponent has been informed and really believes, the said James Madison, Robert Smith, Jacob Wagner, and William Thornton, have not, nor has either of them, any personal knowledge of the offences charged in the said indictments, or of the facts which will be given in evidence upon the trial of the same on the part of the United States-and farther this deponent says not.

NATHAN SANFORD.

Mr. Sanford proceeded to say that the facts stated in this affidavit were not at variance with those stated in the affidavit offered by the defendant.

Sanford. If I understand the questions now before the court, they are these:-First, whether the trial shall be postponed until the defendant's witnesses, who are now absent, shall come in-and, second, whether attachments shall issue againt the four witnesses who have not attended upon the subpoenas.

It was decided by the court yesterday, that it was incumbent upon the defendant, in order to entitle himself to a postponement of the trial on account of the absence of these witnesses, to show in what respect they are material for his defence. It was the opinion of the court that the general affidavit in common form would not be sufficient for this purpose; but that the particular facts expected from the witnesses must be disclosed, in order that the court might, upon those facts, jndge of the propriety of granting the postponement. In compliance with this decision, the defendant has now made an affidavit, in which he has stated the particular facts which he expects to establish by those witnesses. The matters stated in this affidavit must at present, be taken to be true, and, for the purposes of this motion, it must be supposed that the witnesses are really able to prove the facts stated. The point of inquiry therefore, is whether the matters stated in the affidavit of the defendant, are

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NEW-YORK, material in point of law, to his defence, upon the trial of this in

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dictment.

The principal allegation of the defendant in his affidavit, is, that the military expedition against Carracas, and his agency in it, took place with the knowledge and approbation of the president, and the secretary of state. It is said by his counsel, that this amounts to a complete justification of the offence, or that at least, it must operate in mitigation of punishment; and that in either view, they are entitled to the testimony. This we altogether deny. It can neither operate in justification or in mitigation. The most superficial attention to our constitution and form of government will be sufficient to convince any one that this sort of defence is wholly inadmissible. It proceeds altogether upon the idea that the executive may dispense with the laws at pleasure; a supposition as false in theory as it would be dangerous and destructive to the constitution in practice.

The defendant is indicted for a breach of a positive statute of the United States. Do his counsel seriously contend that the president dispensed with the law in this instance? Where will they find an authority of this nature vested in the president? For unless they show this, they gain nothing by their argument. Among the powers and duties of the president, declared by the constitution, he is expressly required, “to take care that the laws be faithfully executed." They will not venture to contend that this clause gives the president the right of dispensing with the laws. Does the president derive such a power from his legislative character? Certainly not. He has a qualified veto, before the law passes. If he approves a bill, he shall sign it; but if not, he shall return it, with his objections, and the bill may be passed into a law, without his consent. When it has become a law, according to the forms of the constitution, it is his duty to take care that it be faithfully executed. He cannot suspend its operation, dispense with its application, or prevent its effect, otherwise than by the exercise of his constitutional power of pardoning, after conviction. If he could do so, he could repcal the law, and would thus invade the province assigned to the legislature, and become paramount to the other branches of the government. To repeal a law, is an exertion of the same legislative power as to make a law; and the legislative power, for whatever purpose exerted, can only be exercised by the whole legislature. The president has no legislative power whatever, except in approving or disapproving bills, which have been adopted by a majority of both houses of congress.

These principles result from the constitution, or rather, they are found in the constitution itself. The constitution of the United States is a delegation of limited powers.-The powers delegated are not only defined with accuracy, but are with equal caution allotted to different branches of the government. We observe throughout the separation of the legislative, executive, and judicial powers, a feature, which renders it justly dear to the people. Hence it has become our boast, that ours is a government of laws, and not of men. The judiciary surely will never give its sanction to so gross a violation of these principles, as would take place if the defence which is now attempted to be made were allowed to prevail.

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If, then, the president has no power to dispense with the law, it NEW-YORK, follows undeniably, that his knowledge and approbation of the offence, cannot be a justification to the offender. If the president has acted improperly, or failed in the execution of his duty, his conduct may be the subject of inquiry before another tribunal. If he has been guilty of crimes or misdemeanors, he is answerable upon an impeachment. The defendant is answerable for his conduct before this court, and a jury of his country.

It is said, however, by the adverse counsel, that if the defendant be not fully justified by the assent of the executive to his offence, yet that circumstance must operate materially to mitigate his punishment. If this idea be analyzed, it will appear to rest upon the fallacy, which, I trust, I have already sufficiently exposed. If the president has no power to dispense with the law, it must follow that an attempt to dispense with it would be altogether a void act, and could not afford any pretence of palliation or mitigation to the offender. But the counsel say that the defendant was, or might have been ignorant of this, and might have supposed that the assent of the executive would shield bim from the penalties of the law. This would be to allege ignorance of the law as a defence; and they might as well have urged that the defendant was ignorant of the statute prohibiting military expeditions, upon which he is indicted. Some of the counsel have indeed had the hardihood to assert in terms that ignorance of the law is an excuse. The maxim of law on this subject, undoubtedly is, that ignorantia juris quod quisque tenetur scire neminem excusat. This rule must be as much applicable to matters which are urged for the purpose of palliation or extenuation, as to those which are presented by way of justification or complete defence. Were it otherwise, the veriest villain in society might escape from justice, under the pretence that he was ignorant of the law, or that he thought the law was dispensed with in his favour, to enable him to perpetrate offences prohibited to every other person. Our law does not recognize such an absurdity. Every man is bound to know the public laws of the land; and if he violates them, he does it at his peril. Upon these principles, how does the proposed vindication of the defendant appear? The counsel say that he had the countenance or the connivance of the executive in the unlawful expedition. What then? I answer he was bound to know, not only the public statute of the United States, but also that the president has no power to dispense with its provisions. The countenance, or connivance, or consent of the president, can, therefore, neither justify his conduct nor mitigate his punishment. An idea was thrown out by the last counsel, that we were in a state of war with Spain at the time the expedition was prepared, and that therefore the case does not come within the statute, which relates only to military expeditions set on foot against foreign states, with whom the United States are at peace. It would be a sufficient answer to this idea, at present, to say that this is not now a question before the court. The inquiry at present is simply whether the matters stated by colonel Smith in his affidavit, as the testimony which the absent witnesses can give, are material to his defence? It is upon this affidavit alone that the postponement is now asked for. Colonel Smith does not state that he expects to VOL. III. 17

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NEW-YORK, prove any thing respecting the state of peace or war by the absent witnesses. On the contrary, he states that their testimony will relate entirely to other objects. The affidavit states that the expedition was set on foot with the knowledge and approbation of the president; but contains not a word of a war with Spain. But this is not the only answer which may be given to this idea of war with Spain. It must appear affirmatively on our part at the trial, that the United States and Spain were at peace. How is this to appear? The constitution vests the power of declaring war in the legislature. It is a power given up by the states to the general government as an attribute of the national and supreme authority. It must, therefore, appear from the acts of the legislature, that the country is at war. But, the counsel say that an actual state of war may exist without the declaration of congress, and have attempted to cite instances of such wars.

There is no instance in which the president has undertaken to make war, but in pursuance of the provisions of the constitution and laws passed under it. He certainly has power to repel invasions, and suppress insurrections; but even this is a power not vested in him by the constitution, but is expressly delegated to him by a statute. Act of Feb. 28, 1795.

The counsel also speak of the late war with Tripoli. That war was also authorized by an act of the legislature.

PATERSON, J. desired Mr. Sanford to lay that law before the court; accordingly the law in vol. 6. p. 8. was handed up.

Sanford. But the question of peace or war, is to be determined by the court upon the laws themselves. The acts of the legislature when they make war, or cause it to be made by others, are like all their other acts; public statutes or general laws which the courts must recognize. So treaties of peace made by the president, with the consent of two-thirds of the senate, are the supreme laws of the land. The judges are bound to know judicially, and to conform to these as to all other laws. It follows then, that the question of peace or war, is a question of law, to be determined by the statute book, and not a question of fact, to be determined by the testimony of any man.

The treaty between Spain and the United States, made in 1795, is still in force, and must remain so until it be abrogated by an act of the legislature; and as such is the law of the land while it remains in force, there is no power in this country that can authorize an individual to set on foot a military expedition against Spain, or any of

her territories.

In the year 1798, when congress thought proper to enter into a partial war with France, they began by recinding the treaties and conventions which then existed between France and the United States.

The court will not listen to what has been said respecting the president's message to congress at their last session, and the measures which may have been projected or proposed in that body, without having been finally adopted. It is absurd to contend that an individual may infringe the laws at pleasure, because the legislature in their secret deliberations, may have repealed the law or may have declared war.