them, and set their American prisoners free. Suppose these prisoners had been taken into Baton Rouge, lieut. Wilson would probably have attacked and captured that fort: and his country would have applauded his decision and his courage. And shall the defendant be punished for only proposing and asking permission to do the same thing, very soon afterwards and in consequence of the same most provoking outrage? War between nations may exist, gentlemen, without any declaration of war. When a nation exercises open violence against another state, she is at war with it. In one of the cases reported by Dallas, the supreme court determined that the French republic was at war with the United States, although no declaration of hostilities had been made on either side. The French republic plundered our property; but their depredations were nothing compared with the insults and outrages which for two years past we have been continually receiving from Spain. The very act of holding by force of arms that country between the Mississippi and the Perdido, which congress have claimed, and justly no doubt, because they have legislated for it, is a permanent measure of hostility-an unequivocal and continued act of war. It is American territory, and every American citizen has a full right to take it and defend it for his country. Mr. Attorney General is pleased to question the sincerity of our declaration, that we meant not to commence operations without the authority of government. Our application to the governor for his permission he conceives to be an aggravation of the offence, because he says neither governor Claiborne nor the president of the United States was authorised to declare war. Gentlemen, we know very well that neither of those officers possessed such an authority: but that it belongs to congress alone. But cannot war be authorised without being publicly declared? Is it not the constant practice of states when they are determined on war to strike a blow against the enemy before he is aware of their intention? If the permission of governor Claiborne would have satisfied us, it was because we were convinced he would not give it, unless in consequence of orders from the president, founded on an act of congress passed with closed doors. The congress often transact business in secrecy, and on what occasion could secrecy be more requisite than in declaring war against Spain, -to enable us to seize instantly on her important posts;-to let the foe feel the

lightning of the national vengeance before its thunder was heard?

"The act of congress, legislating for the Mobile district, did in my opinion authorise the president immediately to take possession of all the country included in that district. Was it not the president's duty to carry that law into execution? And how could he discharge that duty, if the district in which it was to be performed was not within his power? Perhaps I am in errorbut nothing appears more evident to me than that when congress legislated for the disputed territory, they directly authorised the executive, or whoever he might appoint for the purpose, to take that territory even by force of arms, if it could not be otherwise obtained. Where then, gentlemen, is the intentional offence of proposing to the governor to attack Baton Rouge? Let it be even admitted that our opinion on this subject was in point of law erroneous: are we to be punished as criminals because our zeal for the country was stronger than our judgment? The proposition made by major Nott to the governor proves better than any declarations whatever, that our intentions were, as they were stated to be to all with whom we communicated concerning the intended enterprise, lawful and honourable. The introduction of the words lawful means into the promise made by the associates has been animadverted upon, and I think with unjust severity. Men it is said, who associate even for treasonable purposes may, to allure others to join them, declare they intend to use no other than lawful means. This may happen undoubtedly. A man who assures you that he is a man of honour may prove to be a knave or a scoundrel-but are all other men who tell you they are men of honour to be suspected on that account? Because we say that our purposes are lawful are they therefore to be believed criminal? The surest way, gentlemen, to judge of men's real intentions is by their actions. To this unequivocal test I appeal in the defendant's cause-we contemplated an attack on Florida-we believed that Spain was at open war with us, and that of course we had a right to attack her dominions-we could find, as we thought, men enough to seize upon Baton Rouge, and Mobile-yet we would attempt nothing without the direct, explicit permission of government-the demand of this permission proves that what we had said to our associates about lawful means was strictly true-the declining to act without the permission of government proves that our lawful intentions were not to be disturbed or perverted-we abstained, not merely from doing what was unlawful, but from attempting any thing that could in the slightest degree displease our government. Is any thing further requisite for our justification? If there is, the testimony before you will supply it. You have it in evidence that as soon as it was known here that Miranda's expedition, to which public rumour had for some time given the sanction of government, was unequivocally disavowed by them, and that hopes were entertained of accommodating all differences with Spain by honourable negotiation, our society was immediately dissolved by the unanimous consent of its membersyou have it in evidence that the objects contemplated by that society were completely abandoned, and ceased to be the subject even of conversation. What more, gentlemen, can be required to satisfy you that all our intentions and objects were lawful, honourable and patriotic? You see, gentlemen, that in this cause we take high ground-if we were pinched in our defence, we might say that whether our intentions were good or bad, we could not be convicted of any offence, inasmuch as these intentions were never carried into action. But no legal distinction of that kind, no evasion or subterfuge whatever is necessary for our defence. We have nothing to deny-nothing to palliate. We do not excuse but justify our conduct. We hold it to be not only lawful, but meritorious. These observations apply more particularly to what passed in the society, and to what was done seriously and advisedly by its members for as to the trivial or jocular conversations which have been related to you, I am sure you will not think them worthy of the slightest notice. The counsel for the prosecution have had the candour to treat these conversations as they deserved to lay no stress whatever upon them. The very little impression which they made upon the persons who say they heard them, and who never thought them worth repeating till after the lapse of many months, is a convincing proof that they ought not to make any impression upon you at this time. If every light, and vain remark made at table is to be considered serious evidence in a court of justice, few men in New Orleans, at least, would pass unblamed.

"Of the conversations which have been related to you by the witnesses on the part of the prosecution, it is not possible that many of them can have been serious. You know the defendant too well; the testimony which he yesterday gave you of his talents and his knowledge, forbids the supposition that he could have uttered any of the nonsense imputed to him, except in a moment of unguarded levity and without any serious design. To be assured of his innocence in this respect, you have only to fathom his understanding. Men of talents do unquestionably talk nonsense at times like other people; especially in social parties, where the mind unbends, and where sober discretion gives place to the unbounded confidence which hospitality has hitherto held sacred. The testimony of Mr. Bradford, which was given in a manner so clear, ingenuous and candid as to command the assent of all who heard it, furnishes additional proof of the lawfulness of our intentions. From Mr. Small's evidence it would appear that the plan communicated to him by Mr. Kerr, was the very same in its nature and objects as that communicated by me to Mr. Bradford. And what was that? A plan perfectly lawful-a plan to offer our assistance to the government before they could assemble a sufficient regular force for offensive operations. Something has been said about hoisting a Mexican flag in West Florida: had the government permitted the contemplated expedition to Mexico, they would of course permit the best means of carrying it into effect. If you told the people of that province that you intended to make them an independent nation, you ought to use every method in your power to convince them you were in earnest. But they would be apt to suspect that your real object was conquest, and not emancipation from colonial subjection, if you marched under the banners of your own country.

"The attorney general urges that the offer or proposal of certain rank and commissions to individuals is a proof that we intended to act independently of government; inasmuch as government alone have the right of granting commissions-This objection is removed by considering the nature of the expedition we had in view. It was contemplated to be a private expedition under the sanction of government. Such expeditions have been often allowed by the nations of Europe. Almost all the provinces, now the states of America, were taken possession of and settled by private adventurers. A few years ago when England was at war with Spain, a British officer (Col. Fullarton) No. XXI.

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act without the permission of government proves that our lawful intentions were not to be disturbed or perverted-we abstained, not merely from doing what was unlawful, but from attempting any thing that could in the slightest degree displease our government. Is any thing further requisite for our justification? If there is, the testimony before you will supply it. You have it in evidence that as soon as it was known here that Miranda's expedition, to which public rumour had for some time given the sanction of government, was unequivocally disavowed by them, and that hopes were entertained of accommodating all differences with Spain by honourable negotiation, our society was immediately dissolved by the unanimous consent of its membersyou have it in evidence that the objects contemplated by that society were completely abandoned, and ceased to be the subject even of conversation. What more, gentlemen, can be required to satisfy you that all our intentions and objects were lawful, honourable and patriotic? You see, gentlemen, that in this cause we take high ground-if we were pinched in our defence, we might say that whether our intentions were good or bad, we could not be convicted of any offence, inasmuch as these intentions were never carried into action. But no legal distinction of that kind, no evasion or subterfuge whatever is necessary for our defence. We have nothing to deny-nothing to palliate. We do not excuse but justify our conduct. We hold it to be not only lawful, but meritorious. These observations apply more particularly to what passed in the society, and to what was done seriously and advisedly by its members for as to the trivial or jocular conversations which have been related to you, I am sure you will not think them worthy of the slightest notice. The counsel for the prosecution have had the candour to treat these conversations as they deserved to lay no stress whatever upon them. The very little impression which they made upon the persons who say they heard them, and who never thought them worth repeating till after the lapse of many months, is a convincing proof that they ought not to make any impression upon you at this time. If every light, and vain remark made at table is to be considered serious evidence in a court of justice, few men in New Orleans, at least, would pass unblamed.

"Of the conversations which have been related to you by the witnesses on the part of the prosecution, it is not possible that