‘Original Intent’ and Following Orders : A Framer of Constitution Set Issue Straight for Early-Day Ollie

Oliver L. North is not the first colonel to find himself jammed between presidential policy and the law. In fact, television and shredders aside, the North- contra affair has an astonishing and disquieting precedent.

The year was 1806. Spain was the power whose influence in the Western Hemisphere was agitating President Thomas Jefferson. Ollie’s forerunner was one Col. William S. Smith, whose daring and manner during the Revolutionary War had won him the admiration of George Washington and the hand of John Adams’ daughter Abigail, thereby making him the son-in-law of the second President. Col. Smith was described by his wife as “a man of independent spirit (and) high and strict sentiments of honor”--to which a less partial observer added, “It must be admitted that Col. Smith was the sort of man that mothers are especially susceptible to.”

Smith’s life claimed public attention when the Spaniards intercepted a military expedition near Caracas led by Francisco de Miranda, a revolutionary who was aiming to liberate Venezuela from Spanish rule. Almost all of his companions were captured. Events revealed that Smith, impressed with Miranda’s own dash, had been backing the covert operation from the United States. His activities included raising private funds, outfitting a merchantman with weapons and enlisting recruits--including his eldest son, a Columbia College dropout who had joined the expedition as a lieutenant and who was now, to grandfather John Adams’ distaste, being put on display like a Eugene Hasenfus (captured by the Sandinistas when an American-operated supply plane for the contras was shot down on Oct. 5, 1986).

Smith was indicted in New York for violating the Neutrality Act of 1794. The provision in question stated, in essentially similar language to that which Ollie North may have to answer to, that it was unlawful for anyone to “set on foot directly or indirectly within the United States any military expedition or enterprise to be carried on against the territory of a foreign . . . state with whom the United States are at peace.”

Smith’s defense was a bombshell. Everything, he said, had been done “with the knowledge, consent and approbation” of President Jefferson and Secretary of State James Madison.

Before a jury could be impaneled, Smith launched a counterattack in Congress, requesting special relief to derail the criminal charges, of which, “if guilty,” he had been led into “by officers of the Executive Government.” We will never know his congressional pitch exactly. The Annals of Congress for April 21, 1806, bear a cryptic entry of a Senate vote that everything in the journal relative to petitions received from Smith “be expunged therefrom.” But debate preserved from the House records an objection that the tendency of Smith’s petition “was to throw the blame and censure on the prosecutors.” The House, anxious after considerable debate not to side with Smith in a matter that might impugn the President, decided to leave the matter to the federal courts.

The President, who had been privately disavowing any involvement in the affair, refused to issue a public denial. Left to battle it out in court, Smith volleyed off subpoenas to Madison and other government officers (not including Jefferson) who would, he said, substantiate his claim that he was only following orders. When Madison and the others refused to appear, the court had to decide whether to compel Madison’s testimony or to drop the prosecution. The answer to that depended on whether executive approval was material to Smith’s alleged crimes, either as justification or as mitigation.

What makes the trial of that issue particularly provocative today is that it was presided over by William Paterson, an associate justice of the Supreme Court then “sitting circuit.” Paterson had been one of the key delegates to the Constitutional Convention. Modern lawyers can allude rather freely, to their own advantage, to “the framers’ intent.” But keep in mind that the lawyers who had to argue before Paterson were offering their interpretations to someone who knew, if anyone could know: Paterson was one for whom original intent was more than a rhetorical flourish.

The prosecutor, to start, maintained that “the most superficial attention to our Constitution and form of government will be sufficient to convince any one that this sort of defense is wholly inadmissible.” The President’s power was “to take care that the laws be faithfully executed.” The laws forbade military adventures against those with whom we were not at war. We were not at war with Spain. The state of peace could be changed only by Congress. No presidential powers, the prosecutor argued, not even the war powers, gave the Chief Executive authority to dispense with the laws. “It follows undeniably, that his knowledge and approbation of the offense cannot be a justification to the offender. If the President . . . has been guilty of crimes or misdemeanors, he is answerable upon an impeachment. The defendant is answerable for his conduct before this court, and a jury of his country.”

The defense began by characterizing Smith as “a man more sinned against than sinning.” It was true that the Constitution empowered Congress alone to declare war against Spain. But, Smith’s counsel asked, does it forbid the President “from providing and preparing the means of carrying it on, while Congress are in actual and secret deliberation whether they shall declare war against a nation that is committing and provoking hostilities?” Spain was not “entitled . . . to the benefits of this act.” And in all events Smith, “the subordinate agent who, with the knowledge and under the direction of the President, provides . . . the means for a military enterprise against that power, stands acquitted.”

Weighing these arguments, Justice Paterson “expressed some regret” that under the prevailing rules the argument could not be passed along to the Supreme Court. The decision was one that the circuit court had to make, and it came down squarely for the prosecution. The President of the United States, Paterson ruled, “cannot authorize a person to do what the law forbids. If he could, it would render the execution of the laws dependent on his will and pleasure; which is a doctrine that has not been set up, and will not meet with any supporters in our government.” Smith was ordered to answer for his own conduct before the jury, without the benefit of executive witnesses, whatever they would have testified to.

The official record closes with a small-type annotation in the Federal Case Reporter, Volume 27, Page 1245: “The jury retired, and after an absence of two hours, they returned a verdict of not guilty.”

Col. Smith was elected to Congress in 1813.