The enquirer. [volume] (Richmond, Va.) 1804-1815, 1806-07-29
From III, H,Herieau Ci.issw.
UNITED STATES rs. Wm. S. SMITH.
CONTINUED.

hefsIGp 0fcrhivr.- he GttSntant 8 council
Produced a I5sci.tl affidavit. is hal, however,
IN our opinions, out remote, IL any relation K
the deciiion OF the court the preceding dav,
namely, that the offence of the defendant, il
any, heirg committed in the citYof New-York,
when Mr.. Maditon WAS at Warrington, this
gentleman could no. be conii;iered by the court
as material winefs, unlsis it were flown, by
leeciai matters that, in plain language, he had
heard what he did not hear, and ften what he
did not Zee. Unde, the Giro umGlance of ab-
fence from the place where the act was COM
mitted, it required, indeed, [,ee;al matter to
prove that Mr.. Maiiiton's teitimony was at all
material.
The ipec;a' affidavit, which was read nv Mr..
Golden, fet forth that the defendant sc hoped
and expected to prove, by the tef;mony of Mr..
Madiion, Mr.. Smith, MIR. Wagner, and MIR.
Thornton, that IL the defendant had embarked
IN the expedition OF the Leander, that expedition
was begun, prepared, and fet on foot with the
knowledge < appreciation of thePrsiident & the
Secretary OF State" This was the IbeciaEty of
the affidavit. Attachments were now PRAYED
Tor, not againit Nlr. Madifon alone, as ye;ter.
day, but again!f TIE four gentlemen named
Mr. Golden followed up the reading of the
affidavit with a fpeech of confderable length
and zeal, and embracing variety OF points and
precedents, but it appeared to me to be re-
cetilon trocl the queaion before the court.
There Us an obvious and wide iitinttiop be-
twsen-whether any man in the United States
BE- above the law, which was not made point.
or whether, which wasthe true and only point,
Mr Madiion be a material witneis. Leaving
the latter ground almoa untouched, Mr., Col
den treated the quefion on the former and adj
duced Briti'h precedents to fliew that high Of
ficia' characters in that couGtry had under cir
cumitances analogous to thoic of MIR. Msdi.on,
appeared in courts as witneiles. There was in
deed, he iaid, deciiion of the Supreme Court
OF the United States aCsintt him. He alluded
to the caufe of the United States vs. Thomas
Cooper, OF Philadelphia, In which the noted
Judge Chafe imperiouly decided, on a very foe
ciai affidavit OF MIR. Cooper, that the then Pre-
hdent, Mr.. Adams, could not be compelled
tn cone into court as witnefs. He fpoke in
terms of mild reprehcnfon of this deciGon
perhaps becaufc he was iincere, but certainly
hecaufe it was his bufinels, as advocate, to do
10. He could not with the court to apply
Chaes rule, in the cafe of Cooperg TO that of his
client.
Mr.. Golden was followed by Mr.. Hoffman on
the tlIne iide. This gentleman gave us a bril-
liant fpecimcn OF his great and ready talents
He was ingenious, and he had need to be 10.
for where weakneis OF materials is not in fome
Tort compensated by dexteri'y of argument, it
requires ali the patience of itnpidity to bear
with the advocate. He wac, however, only in
genious l thought him not fold, and this, as
he had nothing fubfantial TO hand upon, ia
laying nothing in enlargement of his abilities.
The foundation of MIR. Roifiman's argument
was laid in poiiibiIities not in what is but
what my be. If he fad, he could iheyv poE
hbe cafe, in which the teilimony of Mr.. Ma
dion could be material, the court would not
withhold the attachment. The teaimony of
Mr.. Madfon, he fad, might be, although he
did not affirm that it was, material but in his
confidence he believed it to be 70. In viewing
the iubject in all its relations, it would be pro-
per, he iad, TO take into confederation the poi.
ture of our affairs when the expedition was I'M
dertaken and carried on. In his meilage TO
Congrefs, the Pre6dent, the highcf Official cha
ratter IN our country, and who Ought to be ref
p=eted, Gated that acts of nobility had been
committed by Spain on citizens of the United
States w'tain our own territory, and that he
had ordered our armed force 70 repei thefe at
lacks if repeated i'll future speaking of the
functions of the executive, the right of dcclar-
ing war, he fajd, was veted excluiveiy in
Congrefs, hut could not the United States, he
aiked, be at war with a foreign power without
a declaration Of it by Congrefs Cnnerefs de
clared oGs1fpe war, but when hoiliities, flcb
as thofe mentioned in the Preiideut's meiIage,
were commenced aglnf us, without fuch de-
claration by Congreis we were de fate at war
defsnFVe war, s, the Pre6lent was bound to re-
fit the ag2reiIous. We were then at war, ac-
cording TO M. Hoffman, who very atlroitlv
converted the PreGdcG's prefumed knowledge
and appreciation of the Lcander enterprife, not
indeed, into a full, but a fort or half-way autho-
riY for the defendants enharking in it. The
Spaniih aggrefiion on our citizens and terrific
~ wasiD the South fuppofe, faid Mr. IIoT-
man, II had been IN this city befdes repelling
it, the PRECEDENT might have commenced often
FIVE operations, and have ordered force to
any other quarter, fay the Caracas by way
of inflicting farther punhment on the aggrelliug
cover. Mr.. Hoffman thought Of Harnibl at
Rome, and Scipio at Carthage.--As politician
he would not credit the Prelident for fo much
military knowledge, ikl and intrepidity.
Our territory then was invaded, and our
rights nfringed, and without declaration of
war BY CDngrcfs, it was the duty of the Pref-
dent, flid Mr.. Hoffman, to chaftife the inva.
ders fuch was our iituation.---Let us now
glance at the cafe Of the defendant. 1t is no
torious, faid Mr.. Hoffman, that Congrefs was
debating with ciofed doors, and ifdebatinp in
union with the feelings of America, spon de-
claration Of war. II war was to be declared,
and as the doors of CoUgrsis were clofed, no one
coud tell, but II WAS, it was the bufinefs of the
executive 90 anticipate and provide for it, At
this juntture the enterpnfe of the Leander was
planned, and Miranda cDn(uIted Mr.. Madifon
relpe6tiHg IT, Mr. Mddifon then knew of it
and approved of it, and 70, E1I jfr. Huffman,
4 Q d.. 1t.