North American. [volume] (Swanton, Vt.) 1839-1841, 1839-11-27

of the civil law, "unus tests, nulius fes-
lis" must apply, and that the abatement
| Of one witness, even when unimpeached,
| (and the testimony Of the witness now re-
ieffed To was, in many respects, 90 palpa-
bly false, as TO elicit against him severe
animadvefsions from the same learned
Judge advocate cannot be regarded other
wise than as o complete nudity. More
over, in the case Of Muspfatt and Others,
referred 10 BY Simmons, IN the work above
cited, p. $50, the sentence passed upon
NJ uspTalt By The naval count martial, be-
fore which he was arraigncj, with nine
others, for mutipy, was set aside, in conse-
Quenee Of the court having refused 10 dis
charge two OF their number, Byrne and
| Norman, in order that Muspratt might
call them as witnesses although the evil
deuce for The prosecution had affected
Byrne and Norman 10 certain extent,
bu; not materially and in declaring the
| iliegalty of the sentence, in so far as il
concerned Muspratt, the twelve judges Of
Eng land were unanimous, as well as in
Staliord's case.
6lhly. In trials of court martial, 1t 10
necessary that every question, whether
originating with the prosecutor, the pri-
soDer, or a member OF the court, should be
entered by the j0dge-advocate on the re-
cord of the proceedings. (Vide Simmons,
p. 1872 This practice was departed from
| Throughout the whole course OF the trial OF
the prisoners and thus, many questions
which tended 10 elicit answers favourable
! to them, were rejected without any formal
| del liberation and the strenuous efforts
made by their counsel 10 procure the en-
registration OF such questions, proved una
vaiing. Had such questions been recorded
on revision Of the proceedings, il would
| have been obvons whether their rejection
was Unsuitable, or not.
! That such was the illegal practice fol-
LEVIED during the trial, is established by af-
| hdavits TO the Counsel who assisted the
prisoners. II would be loo tedious to in
sert, in document like this, all the ques-
tons SO proposed and rejected; but the
undersigned Counsel, if required, can pro-
duce the greater part Of them. We might
dwell upon the lllegality of the proceed
ings i'll various other instances, such as de-
alterations held and judgments rendered
| by the Court, subsequent 10 the hour OF
four in the afternoon, in direct contradic-
ton OF the Statute, the fact oil the examin-
alton OF one OF the witnesses Of the Crown
having been carried on in whisper, be-
tween the witness and the Interpreter,
through whose medium alone the answers
Of the former were conveyed 10 the prison.
ers; but we eel confident that The state
ments which we have already fairly and
conscientlously made on the subject, are
more than sufficient 20 convince your Ex-
! ceency oil the correctness Of our last pro-
position. Ii will, doubtless, be urged, by
the learned gentlemen who have superin-
tended the proceedings upon this trial, that
the court by which the pTisonerswere tried,
is not an ordinary court martial, but tri-
bunal character, the mere creature Of the
ordinance, arbitrary in its proceedings,
, and wholly untrammeIled, either by The
articles Of war, or the common law OF the
land.
Ii must appear strange that we should
anticipate, from those learned gentlemen,
an argument SO monslrons in its nature,
80 disastrous in its tendency, founded, as il
,, is, upon denial Of the first principle of e-
:. gal liberty, that offence, and trial, and pun
ishment should be fixed; and strange il
would be, passing strange! had we not
: heard it urged sufficiently often 10 obviats
! all possibility Of misconceplion on our part
We have now concluded this tedious ex-
animation Of the trial Of the prisoners, q
task which we have imposed upon our
: selves, not only from sense OF the imper-
alive duty we owe our clients, whose lives
/. may depend upon our exertions, but also
: from deep and heartfelt. conviction that,
# 10 fulfilling that duty, we would be vindi-
eating, at the same time, The majesty of
. the law, which has been trampled upon i,
. and asserting the rights Of the subjects,
. which have been periAed by The dangerous
!, preceden, established in this case. In the
. performance Of that task, we have abstain
! ed from exercising the ingenuity of The
= advocate, and have taken an impartial
/. view OF the matter, guided solely, as we
have been, by the unquenchable light Of
/ reason; for the broad principles Of law we
), have invoked, cannot be said to rest on
!. any other foundation than on those feelings
!. OF justice and humanity, which the su-
s p'eme ruler Of nations has implanted in the
4 breasts OF all men.
4 We trust, that under the guidance Of
these rights, we have succeeded in con-
: vincing your excellency ofth correctness
OF the propositions we set out with, and
y in establishing, beyond shadow Of doubt,
that the proceedings had in reference TO
the prisoners, have been Illegal, uneonsii-