and when this examinant was by him solicited to suffer the son of this examinant, William Steuben Smith, to accompany the said gen. Miranda to the Spanish Main, this examinant consented, and suffered his son to go with him on board the said vessel Leander, under promises from his said friend the said gen. Miranda, that the said William Steuben Smith should be taken care of by him as a father. That gen. Miranda represented to this examinant the distressed and oppressed situation of the people of that country to which he was bound, and that the people were generally desirous that a change should take place as to their political situation, and that the said gen. Miranda had that object very near his heart, and it was his wish and intention to effect it if it could be done; and the said gen. Miranda represented to this examinant, that on his arrival there he should be in the bosom of his friends, whom he expected would join him in endeavouring to heave off the yoke of the present Spanish government from the people of that country; and this examinant understood fron gen. Miranda, that he was to proceed to extremities to separate that country from the Spanish government, if he found the people favourable to such an event; that gen. Miranda told this examinant, that he had freely and openly communicated his views and plans to the president of the United States and Mr. Madison, upon the subject of his return to his native country, and that the president and secretary told him, the said gen. Miranda, that they were not now ready to go to war, and could not give him any public aid or countenance, but that they had no objection that any individual citizens of the United States should engage in such an enterprise, provided they did not thereby infringe any of the laws of the United States. That on the Saturday before the said gen. Miranda left this city, on board the said Leander, he wrote two letters-one to the president of the United States, and the other to the secretary of state of the United States, which this examinant saw and read, and which this examinant put himself into the post-office of this city, to be forwarded; the contents of which were, that the said gen. Miranda had finished his business in this city in a decorous manner, and in a way, he hoped, that would be pleasing to them, the president and secretary; but that the said letters did not explain what that business was, nor what he the said gen. Miranda had done. That gen. Miranda informed this examinant, that he was on good terms with the British government, and had been some time in England, and lately came from there to this city, and that the said British government were now, favourable to the project of liberating the said Spanish country from the oppression of that government. That this examinant's son went with Miranda as a companion, who was to take care of him and provide for him for life; and it was left to gen. Miranda, in case there was a necessity to proceed to extremities in favour of his friends, and to free his native country, to provide for this examinant's said son as he should think fit, in relation to promotion and command. This examinant does not know how many

men were on board the Leander; that she cleared out with one hundred and fifty men in her manifest; but this examinant understood from capt. Lewis, that there were more than one hundred and fifty men on board, to wit, one hundred and eighty; that about thirty of this last number were passengers on board, and went as attendants of gen. Miranda. That this examinant, at the request of gen. Miranda, asked and engaged about fifteen or twenty men himself to accompany him; and this examinant also desired John Fink, of the Bowery-lane, butcher, to engage some more men, and who thereupon did engage about twenty-three to go on board as part of the crew of the Leander. The ordinary crew of the vessel is about 150 men; that the monthly compensation and payment of the one hundred and fifty men, who went on board as aforesaid, were to have common wages, fifteen dollars per month; but those who went as attendants on the general were not stipulated with as to their wages or compensation; that the aforesaid men, who were engaged by Mr. Fink, were to serve as marines on board of the slip, and observe the orders of capt. Lewis, and on the land obey the orders of the general; that the name of the general was not mentioned to the said men; that subordination of rank was contemplated to be made while on board of the said vessel, and to take effect in case they should land and go into land service; that in the organization of these men, those fifteen or twenty mentioned as attendants of gen. Miranda, were to have command as officers, and be subject to the arrangement of the general in that respect; the others, who were engaged by Mr. Fink, were to attend the general on land on horseback as a body guard; that not a man of those engaged on board as aforesaid, knew where they were to go, or the nature of the service, and all were engaged without any knowledge of the object of the enterprise. This examinant does does not know that any of them signed any articles to go, and all, except those who were particularly to attend gen. Miranda, were engaged at ordinary seamen's wages, fifteen dollars a month. This examinant is positive, that there were no representations made or authorised by him, that the engagement was for the service of the United States, nor any false objects held out to view-the service was declared to be secret and optional. That this examinant received of Samuel G. Ogden, aforesaid, the advance of a month's pay to all the men engaged by Mr. Fink, which he this examinant gave to Mr. Fink to pay the said men, the whole sum being about three hundred and twenty dollars, and which Mr. Fink receipted to this examinant as received from capt. Lewis, as payment of part of the crew under his command on board the Leander. The men were told they were to have horses provided for them where they should land. This examinant was told by the captain there were arms and ammunition on board the Leander. This examinant did not make any advances to his son, except pocket money to equip or prepare him to go: he is nineteen years old; but this examinant gave him letters of credit,

authorising him to draw upon this examinant in case he should wish to return, for his accommodation and expenses home. This examinant was informed of the bargain between Miranda and Ogden for the voyage of the Leander, and her cargo very soon thereafter he thinks next day. This examinant thinks the residue of the men on board the Leander, not engaged, as aforesaid, by himself and Mr. Fink, were engaged by the captain thereof, and several by a capt. Armstrong, who is himself on board. This examinant knew that this expedition was going on from the time of the return of gen. Miranda from Washington, and supposed it was with the knowledge and consent of the president and secretary. This examinant was informed by general Miranda, that he had fully communicated the views and objects of his enterprise to Rufus King, of this city, who, this examinant was informed, thought well of the expedition.

W. S. SMITH. The above examination was taken and subscribed before me this first day of March, 1806.

MATTHIAS B. TALMADGE.

On Tuesday the 8th of April, Messrs. Ogden and Smith, being separately called upon to plead to their indictments, respectively put in their pleas in abatement, verified by affidavit, which pleas were substantially as follows: That the grand jury, by whom the bill of indictment was found, previously to the finding thereof, had before them illegal testimony, and such as, by the laws of the land, ought not to have been before the said grand jury previously to their finding the said bill of indictment; and that the said defendant, on the first day of March last past, was arrested by virtue of a warrant issued by the honourable Matthias B. Talmadge, esq. district judge of the United States for the district of New-York, and thereupon carried before the said judge, and was then and there sworn, and examined by the said judge touching the supposed offences charged in the said indictment, and was then and there illegally, and against his will, forced and compelled by the said judge to answer certain questions touching the said supposed offences, in the said indictment contained, which said examination and deposition of the said defendant were reduced to writing by the said judge, and the said defendant was then and there by the said judge illegally, and against the will of him the said defendant, compelled to sign the same, and to swear to the same as the same were so reduced to writing and signed, and that the deposition in writing of one (the defendant in the other cause) taken before the said honourable Matthias B. Talmadge, esq. in the absence of the said defendant, together with the aforementioned legal deposition and examination of him the said defendant, were, before the said indictment was found, illegally laid before, and were before the grand jury, who found the said bill of indictment, and this he is ready to verify, &c..

After these pleas had been filed, the district attorney prayed time until the next day to consider what measure he should adopt,

which was immediately granted by the court, without any oppo sition on the part of the defendants.

On the next day, the district attorney filed his demurrers to those pleas; and the counsel for the defendants prayed time to join in demurrer till the next day, in order that they might be prepared for the argument. This was resisted by the district attorney, who prayed that they might be compelled to join instanter. This gave rise to a desultory discussion; in the course of which, he said, that the pleas were frivolous; so frivolous, that he would have been justified in taking no notice of them as pleas. Mr. Colden, in reply, mentioned, that by the demurrer, the facts stated in them were confessed, and asked, is it frivoldas to allege, that the party has been indicted on illegal testimony? Is it frivolous to allege that testimony, which the party was compelled to give against himself, has been laid before the grand jury which found the bills? We hope to be able to convince, even this court, that the plea is not frivolous. Here he was interrupted by judge Talmadge, who immediately called on him for an explanation of what he meant by the words, even this court, and asked him whether he had intended to say that the court was prejudiced or partial? Mr. Colden answered, that the words must speak for themselves; that he did not think they imported any such meaning; that he thought the court ought not, and could not examine him, so as to draw from him answers which might criminate himself, and that he was not prepared to give any explanation on the subject. The judge then ordered him into the custody of the marshal. While the order of commitment was preparing, Mr. Colden appeared to consult with some of his friends immediately about him, and again addressed the court, stating that he knew it had the power of committing him, and that he had no appeal to any other tribunal; that he had no disposition, where professional duty did not require it, to enter into a struggle with such disparity of strength, or to make unavailing efforts against irresistible authority; that he had therefore committed to paper an explanation, which he begged leave to read, and which was as follows: "By the words, even this court, I meant to express a hope, that (notwithstanding the court was composed of the magistrate who took the depositions below, and who therefore may be supposed to have his mind influenced by testimony, which he ought not to have heard, and which it was supposed could not have been offered in court here) I should be able to convince, even this court, though it might be more difficult so to do, than to convince a court, the members of which were new to the business.-I meant no contempt of the court."

Judge Talmadge then asked Mr. Colden for the paper he had in his hand, which the latter declined giving, saying it was only his notes, from which he had spoken. He, however, by desire of the judge, again read over the paper he had written; upon

which his honour said, the apology was sufficient; and told the marshal that he might discharge that man out of custody.

The discussion relative to postponement of the argument on the demurrer, was then renewed. Mr. Emmet stated, that from the nature of the facts set forth in the pleas, he had rather expected the district attorney would have taken issue on them, than admitted them by demurrer; that therefore the whole of his atrention, and he believed also of that of his associate counsel, had hitherto been directed to the best manner of supporting the plea before a jury; that therefore the demurrer was a surprise upon him, and he was not prepared to argue it, except on the general principles which first suggested to the defendant's counsel the propriety of the plea. He observed further, that no objection had been made to indulging the district attorney with time for consideration yesterday, because the pleas were probably not expected by him; and there was no wish on the part of the defendant's counsel to obtain any advantage by surprise.

The court then observed, that if the defendant's counsel were' really unprepared, they should be indulged with time till the afternoon, but no longer; and at half past twelve adjourned till three o'clock.

The sitting of the court being resumed, the district attorney began by stating some formal objections to the plea, which it is unnecessary to mention here, as the judgment of the court was founded exclusively on the general objection on the merits, that no such plea would lie.

On this general question he argued, in support of the demurrer, that this plea was a perfectly novel experiment, for which no precedent or authority could be found. This very novelty was conclusive evidence that it would not lie; for otherwise it is inConceivable that it should not have been made use of before now. It manifestly appears, from the silence of all the elementary writers, that there can be no such plea in abatement. Lord Hale (2 Hale's Pl. Cr. cap. 30, p. 236) details all those pleas, among which such as this is not to be found. They are, according to him, 1st. Such defects as arise upon the indictment itself, and the insufficiency of it. 2d. Such defects as are in matters of fact, as misnomer or false addition of the prisoner; and, 3d. By matter of record. The acts of grand juries are not to be brought into court and questioned in this way; they are independent and irresponsible; they judge for themselves of the testimony upon which they ought to find indictments, and no one has a right to inquire; nor has he, without a violation of the grand juror's oath, the means of knowing what evidence they may have had before them. No injury can result from this; for it is the duty of the grand jury to decide on ex parte evidence; and if they decide wrong, or prefer a false charge, the natural and the only remedy is, that the accused will be acquitted on his trial before the petty jury. The object of the grand jury is only to judge whether