Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1824-06-25
LIEUT.. KENNoN's TRIAL

LIEUT.. KENNoN's TRIAL
(coScruDEp.)
ExHiRrr-No. IS.
The Cornscl OF the Prisoner avails HIMSELF of
the permission granted by the Court, to ss pport
tho legality and propriety of the question pro-
posed to Captain Porter.
Toprcsent, more distinctly, the proposition he
isto support, it will be proper TO carry back a
little the recollection of the Court to some Incl;
dents which have occurred during the examina.
ton, the connection of which with the point to
be discussed, is nccdful to its explanation.
In an early stage Of the cross-examination of
Capt. Porter, it was laid down by the court as a
principle, that, as witness, he was bound to an
swer no question, the reply to which might cri
inmate himself. Subsequent to this decision,
the prisoner proposed to Captain Porter qucs-
ton IN the following words: s.In newspaper
called the Georgian, published in Savannah, on
orabout the 9th of October last, was an anony-
mons publication, in the following words: 80
the Editor of the Georgian. Some Statements
&c. (rcciting the publication:) Were you the
anthor of that publication, was it published
at your request or by yourorders ?" and The Court
received, aud allowed to be recorded, this state.
ment from the witness. 81 know the author of
that publication. fully concur with him in O.
pinion, and prepared to substantiatc all the facts
contained in that publication. I decline apy
further answer" 1t was understood by the pris-
oner that the witness ssdeclining to answer. >,
meant to avail himself of the principle before
alluded to, and further inquiry as to his author
ship OF that piece was either denied or not pur-
sued, because of the Courts decision, on the
principle of nontcriminaton, before alluded to-
The Counsel of the Prisoner Judging only by
the feeble lights Of his information, drawn from
the common law courts Of civil and criminal i,l-
risdiction, and from the general principles of evil
dencc, which he had supposed universal, because
they are the offspring not of positive law, but Of
reason, and should be alike in all Courts,) did
not conceive that the statement of the witness
ought to have been received upon the records:
First. Because it was nst responsive to the
question, the witness 'sknowing, OF not knowing,
who the author was, or concurring, or not con-
curing, in opinion with the author, or being a.
bic, to prove the facts stated in that publication
had nothing to do with the question; which did
not seek Information on any o. these matters, but
sought only to know what these statements did
not ansloer, whether the ,oitaess ,oas the author
or had authorized the publication. And, Sc
condly, Because the rule which absolyed the
witness from the necessity of answering, is in
tended by the law as shield to protect the ris-
ness, not s,cord to assait the inquirer. It
gives him tue liberty of being silent to the in
quiry if he pleases. But, if he chose TO answer.
he is bound to answer fully, and not partially !;
much less can he, while claiming the protection
of the rule, and declining to answer the inqui,y
introduce statements not responsive to the ques-
ton, for the purpose Of assaiting las was done
IN this CASEY the prisoner, who put the question.
But as the Court, by receiving the statement OF
the witness on the record, admitted its proprie-
ty, and the Counsel has had many motives for
wishing to avoid all objections, which might
seem either technical, or intended to smother
ANU f,n ft,op l<.-
with the hope Of either neutraIizng the poison
which the statement had infused, or of directing
tito q different quarter from the one designed.
With this view he propounded the question
which is now the subject of investigation. 1t is
in these words:
".iitnoJSh yos have declined to answer to nv
enquiry, if you are the author tho publication
Sin the Georgian, you have taken occasion to
sssay You concur with him in opinion & that you
"are prepared to snbstantiate all the facts con-
stained In that publication: am to understand
"by this anwcr, that you, even now, with all
"tfe facts that are within your knowledge, mean
$50 impute to me the vices and noproprictics
"imputed to me in that publications. And the
Counsel Is now to vindicate the legality and
proprictY of it. In doing this, lie will notice
the decision of the court only for the purpose of
ascertainipg the objections which seem to exist
in their minds with view ofapplying himself to
a1SF EeftOfdi. ne IL Is not tue
teDtion of the Court, that the iltimation OF its
OPINION is to prevent free argument on the qucs-
ton. For if that restriction had been insisted
on, all Argument must be useless; and the Coun-
sci estimates bis Office too highly to offer one.
First, as to the form of the question II may
be proper to take this occasion to observe, that
as the law does not permit the Prisoner or the
Court To dictate the terms, nor prescribe the
nInHcy in which the witness is 20 give an an
srer, provided the answer be responsive and di-
Tcctly affirmative or negative; SO neither does
the lay allow the terms manner in which the
Prisoner shall put his questions to be prescribed
to him Ho is at liberty, it is believed, to Sc
Iect suc!i form and mode as to him seems pro-
psr. IF his questions be unskilfulIy prepared,
he is to suffer by it.
One limitation, indeed, applies in common to
the question and answer, aud indeed all the pro-
ceedings Of Court of Justice; that they do not
unnecessarily invade decency and morals. /
cay unnecessarily, because if it be necessary, "a
ny question, however painful to the ears of the
Court, or Notifying to the feelings of a witness,
may be put, and must be answered: and the re-
cord of the Court derives no contamination
from them Prosecutions for rape and other
grosser crimes in criminal, and for adultery in
evil Courts, furnish daily examples Of this rule.