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.
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