The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-02-07

Trial OF Comm ander Nick cnzie.
FIFTH DAY-FEB.

The Court met according 10 duJourhiHeht' AL 'hc
members were present. After the Court had re-
manned in secret session for upwards of an hour we
were admitted
Midshpman HAYS was called, and on his appear
ance sworn.
The JUDGE ADVOCATE then read to the wine the
first charge and first specification and was proceed
| ing To examine him, when
Mr. DUER rose and objected. The course which
the Judge Advocate intended TO pursue was In his
opinion wholly unprecedented, and unjust to the
cused. He intends, II appears to examine his wit
ness in the first instance only on the first specif
cation under each Of the first three charges. II he
(Mr d. was in order
PREsIDENT-lf you have any argument, il must be
presented in writing.
| Mr.. DuER-I have no argument, sir, to offer. |
have only to say that the Judge Advocate Is bound
to submit evidence In support of all the charges be-
| fore the accused Can be called on for his defence.
The investigation is not 10 be divided into three Sc
parate trials.
| JUDGE ADVOCATED have not yet announced my
| intended course. When stop going on with the
| evidence, the objections will then properly come
| up
| Mr.. DUER-I suppose 1t arises now. He intends
| TO examine the witness only ON the first specifca
| uon If otherwise, he would have read all the
| charges and specifications.
PRESIDENT 1t is no mere than right that they
should know your course They now in the dark.
| think it would be well for the Judge Advocate to
read his paper so as to inform the accused OF the
| course he intends to pursue
| The JUDGE ADVOCATE then read a paper, in which
he sgnlhed his intention OF presenting all the evil
dence on each specification separately Stated that
that the only proper and legal way of conducting
the case. 1t was true that the charges and spech-
cations arose out of one transaction and the main
| instance, but the object of inquiry was, whether
| Commander Mckenzie rightly put TO death the
| three men, and testimony with respect to might
not have any thing to do with the others.
Mr. DUER-This course is entirely unprecedented
| never heard of separating the charges in this
way-,he course of public prosecutor always is
| PRESIDENT Your objection must be in writing
| Mr.. DUER--If so, must request copy Of the
Judge Advocates paper. The accused is not called
| him has been adduced This has been the invaria-
BILE usage. The Judge Advocate may separate his
evidence as he asses, but until the prosecution has
terminated Its evidence, we cannot be called on for
| the defence.
PREsDENr-Itis not intended that we should
come to any decision on any charge, till the whole
be gone through with.
Mr.. DUER-.I know that, sir, but if it is intended
to examine witnesses on the first specification, and
that then we are 10 answer on that, and then go on
with the second in the same way, say that would
on to give our evidence until he is entirely through
He may separate his evidence as he pleases, but he
cannot compel us to SCI arate our defence.
PREslDENT-Do You require time to answer this
paper!
Mr.. DUER-I require copy, in order to reply in
| writing.
The Court was then cleared, and on its reopen
The JUDGE ADVOCATE stated that the Court had
decided they should go on on all the specifications
in their order, Gas if one indicment)
| MIpsHIPMAN HAYS was then examined. After de-
| posing that Mdshpman Philip Spencer was arrest.
ed, confined and executed by order of Commander
| Mckenzie, at the dates mentioned in his former
| animation the witness was asked
Q.-From the time of bis arrest till the time of his
| execution was Philip Spencer furnished with any
charges and specifications of crime
| A.-No, sir.
| Q.-From his arrest until the time of his execu.
ton was there any investigation into Philip Spen-
GERS guilt or any crime against the laws of the
| Wy made by Commander Mckenzie or any of the Of
icers OF the brig Somers, in the presence OF said
| Philip Spencer, so that he might know the charges
| against him, confront the witnesses, crossexamine
them, and present proof of his innocence?
| A.-NOne III his presence, sir.
1.-THE same questions were put under the specifi.
| cations relative to Small and Cromwell, and the
| same answ ers given ]
| The JUDGE Advocate then sad-After conversa-
ton with the counsel for the accused, have deter
mined TO reserve charge 4th until nave received
the opinion Of the Attorney General on the subject.
In relation to charge 9th, undo stand that it was
opportunity OF indicating himself If he thinks
| proper. shave seen no evidence to sustain the
charge (of cruelty and maltreatnent of the crew
| and must therefore abandon it. The case for the
government is closed
GAIT. SMrTH.-Should not some course be ADOPT
ed by the Court in relation to this charge?
Mr.. DUER.-I considered that it had been aban-
doned by the Judge Advocate.
| JUDGE ADvCCATE.-I have been precipitate for
the witness is still before the Court
CAPT. SMrH.-The Court may not concur with
the Judge Advocate in throwing out that charge
For my own part do not, and as the witness is on
the stand wish to put question to him. But, if
the charge be Withdrawn by the government
| JUDGE ADvoCATE.-Oh no, ii is not. said was
not furnished with any evidence, but the Court may
perhaps elicit some The term I" abandon" was a
loose expression, which employed for the purpose
of indicating that had no testimony on the charge.
| GAIT READ.-Of course the charge is still open,
and subject to investigation.
CAPT. SMITH, wish the log book brought in,
and placed in the hands OF the Judge Advocate.
The log book OF the Somers was then brought
into court.
JupeE ADyocArE.-(To Captain Smith, DO you
| wish it in evidence at present?
CAPT. SMITH. Il wish 1t for the general purposes
| of the investigation.
CAPT. BoLToN thought the charge Objectionable
| on account o! its vagueness
JUDGE ADVOCATED believe the government was
not furnished with any specific complaints The
charge was as have already remarked, put in for
the purpose of allowing Commander Mckenzie an
opportunity OF vndlcating his character relative to
| the treatment of the crew.
Capt. BoLroN-That ought to be left to himself
The charge seems to me so vague that it ought not
| be entertained.
| Mr. DUER-Cemmander Mckenzie of course
| wishes the charge retained.
| Capt. BOLTON had intended to make motion on
the subject and have it discussed but he would now
| refrain.
The Court was, however, cleared, and the MEM
bers elaborated in secret for twenty minutes On
our readmission, the following question was put TO
Mdshipman Hsys:-Did Commander Mckenzie
maltreat, cruelty punish unnecessarily, any
of the crew Of the brig Somers during her last
| cruIze!
A.-No, sir. BY no means
The testimony Of Midshipnian Hayswas then read
over to him.
JUDGE Advocate shall call no other witnesses
The Court was again cleared, and so remained
for ten or fifteen minutes On the doors being again
opened.
The JUDGE ADVOCATE informed Commander Nc
kenzle that the Court was ready to hear any testi-
mony he had to offer.
JAMES w. WALES was then called on the part of
the defence, and, having been sworn, deposed pre-
cisely as before the Court of Enquiry, which we on
that occasion fully reported, and with which the
public well acquainted.
, Mr.. Wales had got about half through his nara
when hnur Of Il