But the accident of the 25th of April brought the American people to a proper sense of their situation, for the moment. On that day, His British Majesty's ship Leander fired a round-shot into the sloop Richard, bound to New York, and killed the man at the helm, John Pierce. The body was brought to the city and borne through the principal streets, in the midst of universal excitement, anger, and cries for vengeance. Black streamers were displayed from the houses; shops were closed; the newspapers appeared in mourning. A public funeral was attended by the whole population. Captain Whitby was indicted for murder, and took care to keep out of the reach of United States law-officers. This homicide happened just in time for the May election in New York. Both parties attempted to make use of it. The Federalists proclaimed that the blood of Pierce was on the head of Jefferson and his followers. These retorted, that the English pirates were the friends and comrades of the Federalists. Cheetham had seen the first lieutenant of the Leander, disguised, in company with eight or ten of them, some days after the murder!!! And the Democratic Republicans, as was and is still usual, had a majority at the polls.
From time to time short paragraphs appeared in the papers, advertising Miranda's success. "His flag was flying on every fort from Cumana to Laguayra." "The whole of this fine country may be considered as lost to Spain." Then came tidings of sadder complexion. He had been beaten off with the loss of forty men, taken prisoners. The Spaniards had threatened to hang them as pirates, but they would not dare to do it. The British had furnished Miranda with forty Spanish prisoners, as hostages, "to avenge the threatened insult to the feelings of every friend to the rights of self-government in every part of the world." At last, news arrived from the Gulf which left Miranda's failure in his first attempt to land no longer doubtful. This, of course, made the position of Ogden and Smith more dangerous, and their case more difficult to manage.
When the trial of Colonel Smith came on, public interest revived, and became stronger than before. The court-room was crowded by intelligent spectators during the whole course of the proceedings, The case was peculiar, and had almost a dramatic interest. Here was a Government prosecution against a man well known in the community, for an offence new to our courts; and the heads of that Government, Jefferson and Madison, were indirectly on trial at the same time:—"For, if Smith and Ogden are acquitted," said the Federal papers, "then must the whole guilt rest on the Administration." Apart from the political interest of the trial, the eminence of the counsel employed would have commanded an audience anywhere. Never, since New York has had courts of justice, have so many distinguished lawyers adorned and dignified her bar as in the first twenty years of this century. In this case, nearly all of the leaders were retained: Nathan Sandford, District Attorney, and Pierrepoint Edwards, for the prosecution; for the defence, Cadwallader Colden, Josiah Ogden Hoffman, Thomas Addis Emmet, Richard Harrison, and Washington Morton.[*]
[Footnote *: Judge Patterson, of the United States Court, occupied the bench with Judge Tallmadge, until ill-health obliged him to withdraw. He died soon after.]
Mr. Colden handed the Clerk a list of his witnesses, and requested him to call their names. Among them were those of Madison, Dearborn, Gallatin, Granger, and Robert Smith, all members of the Government. He then read the affidavit of service of subpoenas upon them on the 25th of May, and, inasmuch as these gentlemen had not obeyed the subpoena, and as Colonel Smith could not safely proceed to trial without their testimony, he moved that an attachment issue against them.
The District Attorney opposed the motion, on the ground that the testimony of these witnesses could not possibly be of any use to the defendant. None of them were present in New York when the Leander was fitted out. And even if it could be shown by these witnesses that the Administration had approved of this illegal expedition, it would not help the defendant. This is a country governed by laws, and not by arbitrary edicts. If Colonel Smith had violated these laws, he had rendered himself liable to punishment. He could not escape by making the President a particeps criminis. An amusing letter was read from Madison, Dearborn, and Smith, which stated, "that the President, taking into view the state of our public affairs, has specially signified to us that our official duties cannot consistently therewith be at this juncture dispensed with." They suggested that a commission should issue for the purpose of taking their respective testimonies.
Colden insisted that this was an attempt of the Executive to interfere with the Judiciary, which ought not to be tolerated. Counsel in criminal cases had always the right to stand face to face with witnesses. It was outrageous that the President should first approve of the conduct of Colonel Smith, then order a prosecution against him and forbid his witnesses to attend the trial.
The Court refused to grant an attachment. And later in the trial, when the defence offered Rufus King to prove the President's knowledge and approbation of the enterprise, the Court decided against the admission of the evidence.
The history of the expedition in New York, as shown by the testimony, was briefly this:—Colonel Smith introduced Miranda to Ogden; and Ogden agreed to furnish his armed ship Leander, and to load her with the necessary provisions, stores, arms, and ammunition. He estimated his expenditure at seventy thousand dollars. Miranda had brought with him from London a bill of exchange on New York for eight hundred pounds, which had been paid, and had drawn bills on England and on Trinidad for seven thousand pounds, which had not been paid. This was all that Ogden had received. But if the enterprise were successful, he was to be paid two hundred per cent, advance on the ship and cargo. Smith had engaged fifteen or twenty officers, without informing them of the object of the expedition, but expressly stipulating in writing that they would not be employed against England or France, and giving them a general verbal assurance that they would speedily make their fortunes. In this he was sincere, for he took his son from college and sent him with Miranda. Smith had employed John Fink, a Bowery butcher, to engage men who could serve on horseback. Fink enlisted twenty-three at fifteen dollars a month, and fifteen more as a bounty. They were not to be taken out of the territory of the United States. Some of them were told that the President was raising a mounted guard; others, that they were to guard the mail from Washington to New Orleans. One of Fink's papers was shown on the trial, indorsed, "Muster-Roll for the President's Guard." Smith had furnished the bounty-money, but it did not appear that he had authorized these misrepresentations of Fink, who developed a talent in this business which forty years later would have made his fortune as an emigrant-runner. Abundant proofs of the purchase of military clothing, arms, powder, shot, and cannon were produced.
The Counsel for Colonel Smith, unable to get the connivance of the Administration before the Jury in the shape of evidence, coolly assumed it as established, and urged it in defence of their client. They used his memorial to Congress as their brief, enlarged upon the arbitrary conduct of the Judge in the examinations and upon the tyrannical interference of the President with their witnesses. As Mr. Emmet cleverly and classically remarked, quoting from Tacitus's description of the funeral of Junia, "Perhaps their very absence rendered them more decided witnesses in our favor." They also maintained that the Act of 1794, under which the prisoner was indicted, did not prohibit an enterprise of this character. Even if it did, no proof existed that this expedition was organized in New York. On the contrary, it was known that Miranda had gone hence to Jacquemel, and had made his preparations there, in a port out of our jurisdiction.