Mr. Cadwallader Golden, of counsel for the defendants, made a motion before Judge Tallmadge for an order to prevent the District Attorney from using the preliminary evidence taken at the private examinations. "It was a proceeding," he said, "arbitrary and subversive of the first principles of law and liberty,"—"which would have disgraced the reign of Charles and stained the character of Jeffries." The District Attorney was heard in opposition, and was successful.
On the 7th of April, the Grand Jury found a bill against Smith, Ogden, Miranda, and Thomas Lewis, captain of the Leander, for "setting on foot and beginning with force and arms a certain military enterprise or expedition, to be carried on from the United States against the dominions of a foreign prince: to wit, the dominions of the King of Spain; the said King of Spain then and there being at peace with the United States." The Grand Jury, as an evidence of their impartiality, or of the public feeling, also handed the Judge a presentment of himself, which he put into his pocket, censuring his conduct in the private examinations, because "unusual, oppressive, and contrary to law."
The trial was set down for the 14th of July. Messrs. Ogden and Smith did not wait so long for a hearing. They laid their case at once before the public, in two memorials addressed to Congress, complaining bitterly of the prosecution, not to say persecution, instituted against them by the authorities in Washington, and of the cruel and oppressive measures taken by Judge Tallmadge to carry out the mandates of his superiors. If they had done wrong, they urged, it was innocently. A war with Spain was imminent. The critical position of the Louisiana Boundary question, the President's Message of the 6th of December, and the documents accompanying it, left no doubts on that point. Were they not right, then, in supposing, that, under these circumstances, the President would encourage an expedition against the colonies of a hostile power? As evidence of Mr. Jefferson's knowledge of Miranda's schemes, they stated that the General had brought with him from England a letter to "a gentleman of the first consequence in New York," (Mr. King,) which contained a sketch of his project: this letter was forwarded to the Secretary of State and laid before the President by him. Miranda then went to Washington, saw the President and the Secretary, and wrote to the memorialists that he had fully unfolded his plans to both. In the course of a long conversation with Mr. Madison, he asked for pecuniary assistance and for open encouragement, on the ground that individuals might not be willing to join in the enterprise, if Government did not approve it,—particularly as a bill was then before Congress to prohibit the exportation of arms. He also requested leave of absence for Colonel Smith, who wished to accompany him. Mr. Madison answered, that the sentiments of the President could not be doubted, but that the Government of the United States could afford no assistance of any kind. Private individuals were at liberty to act as they pleased, provided they did not violate the laws; and New York merchants would always advance money, if they saw their advantage in it. As to the bill Miranda had spoken of, it was unlikely that it would pass,—and, in fact, it did not. It was impossible, Mr. Madison added, to grant leave of absence to Colonel Smith, although he thought him better fitted for military employment than for the custom-house. He closed the interview by recommending the greatest discretion.
Miranda, continued the memorialists, remained fourteen days in Washington after this conversation, and returned to New York confident of the silent approval of Government. Eleven days before the Leander sailed, he sent a letter to Mr. Madison, inclosing another to Mr. Jefferson, both of which he read to Ogden and to Smith. He assured Mr. Madison that he had conformed in every way to the intentions of Government, and requested him to keep the secret. To Mr. Jefferson he wrote in a strain more fashionable ten years before than then, but well adapted to the sentimentality, both scientific and political, of the "Philosophic President." Here it is:—
"I have the honor to send you, inclosed, the 'Natural and Civil History of Chili,' of which we conversed at Washington,—and in which you will, perhaps, find more than in those which have been before published on the same subject, concerning this beautiful country.
"If ever the happy prediction, which you have pronounced on the future destiny of our dear Columbia, is to be accomplished in our day, may Providence grant that it may be under your auspices, and by the generous efforts of her own children! We shall then, in some sort, behold the revival of that age, the return of which the Roman bard invoked in favor of the human race:—
"'The last great age foretold by sacred rhymes
Renews its finished course; Saturnian times
Roll round again; and mighty years, begun
From this first orb, in radiant circles run.'"
On Miranda's reports, these letters, and the fact that the Leander had not been seized, they rested their case, and prayed for the interference of Congress in their behalf.
Congress unanimously granted the petitioners leave to withdraw. Such evidence as this, not only hearsay, but heard from the party most interested in misrepresenting the Administration, was not entitled to much consideration. It had, moreover, the additional disadvantage of proving nothing against the President and Secretary, even if every word of it were admitted as true.
Public attention was diverted from the Leander, Captain Lewis, to the Leander, Captain Whitby. This English frigate was cruising off Sandy Hook, bringing to inward and outward bound vessels, searching them for articles contraband of war, and helping herself to able-bodied seamen who looked like British subjects. All of which was meekly submitted to in 1806. Mr. Jefferson could not overcome his doubts as to the constitutionality of a fleet, and the Opposition had the twofold pleasure of chuckling over the insults offered by John Bull to a government with French proclivities, and of reproaching the party in power with its supineness and want of spirit.