William S. Smith and Samuel G. Ogden Trials: 1806
President's Role At Issue
While Smith and Ogden were awaiting trial, Jefferson's political adversaries did everything they could to exploit the situation. Opposition newspapers had a field day charging the government with persecuting Smith and Ogden while attempting to hide its own misdeeds. Petitions were even submitted to Congress on behalf of the defendants to seek whatever relief that body might give, but after a bitter debate, the requests were denied.
Smith and Ogden were tried separately. Smith's trial began on July 14, 1806. Since his arrest, Smith and his wife had lived in a small cottage within the prison in New York City. His defense team consisted of five eminent lawyers including the city's former prosecuting attorney, Cadwallader D. Colden, and the famous Irish patriot turned American lawyer, Thomas A. Emmet.
Presiding at Smith's trial were two judges. Besides Talmadge, who had taken Smith's and Ogden's depositions, the other jurist was William Paterson, an associate justice of the United States Supreme Court. (At this time, between court sessions, associate justices presided over major federal trials.) It is possible that Paterson may have felt some animosity towards Smith. Although the judge was, like Smith's father-in-law, a member of the Federalist Party and a political opponent of President Jefferson's, he was also a member of the Federalist faction that opposed President Adams' reelection in 1800. Also in 1800, Paterson was passed over by Adams for promotion when Chief Justice Oliver Ellsworth resigned.
Smith's defense was that he was acting under direct orders from Jefferson and Madison and that he was being made a scapegoat so the White House could appease the Spanish and pretend that it disapproved of Miranda's expedition. It was also argued that while the power to declare war rests with Congress, it is up to the president to decide if an actual state of war exists when Congress has not yet acted. (Thus, if Jefferson approved or ordered Smith's actions, then that would be strong evidence that the United States was, in fact, at war with Spain and the Neutrality Act did not apply.)
A major problem for the defense, however, was that most of the witnesses who could speak about the president's role were unavailable to testify. Madison, as well as three other members of Jefferson's cabinet and various State Department officials, were named as defense witnesses and subpoenaed to appear. They all, however, refused because the president deemed it more important that they remain in Washington to do their jobs. Specifically:
… the president of the United States, 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.
Instead, it was suggested that the testimony of Madison and the others be taken by interrogatories (written answers to questions submitted by the prosecution and defense) or by other means. This suggested alternative, however, was not acceptable to Smith's lawyers, who argued that their client had the right to compel these witnesses to testify at his trial. Therefore, the defense sought a continuance as well as a court order forcing Madison and the others to appear.
The prosecution countered that, even if Jefferson knew or ordered Smith to help Miranda, the president's actions did not justify Smith's violation of the law. Only the Congress can declare war and any argument to the contrary: … 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.
Therefore, since whatever the president did was not a defense, then anything Madison or the others had to say on the matter was irrelevant to Smith's guilt or innocence.
After three days of argument, Judge Paterson ruled on July 17 that nothing Jefferson did could justify Smith's actions. "The president of the United States cannot… authorize [sic] a person to do what the law forbids." The court also held that, until Congress declared war, the United States and Spain were at peace. Therefore, any testimony regarding the president's participation in the Leander affair was immaterial in determining Smith's guilt and both the motion for a continuance and the motion to compel the presence of Madison and the others were denied. (Severely ill, Paterson took no further part in either Smith's or Ogden's trial after this ruling. He died seven weeks later.)
During the next five days, several prosecution witnesses testified, but the government had difficulty proving that Smith was fully apprised of Miranda's plans. In contrast, most of the defense witnesses who were at the trial were there only to speak about Jefferson's role in the affair. Therefore, few were permitted to testify because, according to Judge Paterson, what they had to say was irrelevant. Still, although no evidence was allowed about Jefferson's role, Smith's lawyers were allowed to concentrate on that very issue during their concluding remarks to the jury. As one of his attorneys said:
No gentlemen, he [i.e., Smith] has not wilfully [sic] and knowingly infracted the statute—his mind has perpetrated no crime, for he acted under the conviction, that his proceedings were legally sanctioned by the chief magistrate of the union … Did the president of the United States and the secretary of state approve of and countenance this expedition? The man who can doubt it, after hearing this trial, must be obstinate indeed in prejudice.
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