The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-10
Trial OF Commander Mckenzie.
THIRTY.FIRsT DAy-MARcH

DAf-MARcHS
The Court assembled pursuant to adjournment and the
preliminary proceedings having been despatched the
President called the accused for his answer to the a-
plication of the Judge Advocate
Theodore sedgwick, Esq, read the following docu
ment -:
May IL please the Court
The counsel for the defence in this case have from its
commencement boen DESTROYS that examna ion of the
evidence on which it depends should be conducted the
fullest and reest manner and acuated these consider
aton they have repeatedly orborne raise objections
which, in their apprehension we'll warranted by the
dence
Butthe motion made by the Judge Advocate is one
80 entirely by any rule danger
Gus as precedent and injurious in the atoms il
conveys whether these mputatons designed or not
that we do not feel ourselves at liberty give other than
the most strenuous opposition.
An application coming this does, from the officer
whose special duty instruct this Court upon uues-
tons of law; and tending the same time to one
otthe best settled principles that law which he placed
here to should in judgment be resisted the
outset.
OF the Somers who have sworn and to conduct
their direct examination as If 1t examina ion
whether the permission asked for ii granted, extend
no lower than to warrant officers, to embrace petty Off
to be used hereafter precedent for asking the
same liberty regard to those apprentices charged par
cipatos in the muny, does not present appear but TO
any extent and 10 extent consider the request
naimssibe We shall at present that the motion
now made does not apply to those suspected of having
joined in the plot They VIGOROUSLY willing witness,
es for the charges; and to give the counsel for the people
liberty to put leading questions willing witnesses would
DE, IN capital case, to give 1t ruthless and appalling
character
The rule distinguishing direct from crossexamination
what he calls leading questions questions tending to
contradict his own statements and mpeach his veracy
IS one famiiarto almost every mind and upon the good
sense Of which certainly here to com.
menf The practical distinctions between direct and
cross examination are well stated by Mr. starkie-vol
page AS
I there apprehension that witness has any other
disposition than to give plain and succnct declaration Of
the truth wish in the Advocate to conye y diff
fereA impression but his merely for
the purpose of explanation for ascertaining further
facts of which he may be supposed to have
1t is not materially distinguished from his examination in
Chief The peculiar character of examination only
attaches when it is expected that the witness guilty of
perjury or at least misrepresentation suppression of
iacts or when it is wished to convey that impression
the Jury"
emporly prohibits the Advocate from examining
the witness called by himself; which prohibits him, in
other words, from impeachng the character of the wit
ness upon whom he himself relies.
What are the exceptionsto this rule There is but
one and that grows out OF experience based upon good
sense and completely incorporated with the law viz:
that where witness upon the stand, after his examina
ton has commenced, SHALL by his his demean
create any suspicion that he will violate his duty and
alsify the oath which he has TAKEN he may in the dis
erection of the Courta discretion and con-
troed by these treated as an adverse
an unwilling and suspected witness and such cross
examined by the party calling him. This is the only
cepton having any bearing upon the matter before u.s.
the correctness OF this proposition, although they are
cited by him in such manner that they do not convey
from starke follows -: The mode of examin alton
is in truth regulated by the dscretian OF the Court &C.
c0dg to the disposition and temper of the witnesses
The Court frequently permits adverse witness be
cross'examined by the party who calls him." so says
American authority, Greenleaf on Ev 49, -" In some
cases, however leading questions permitted even on
direct examinations namely where the witness appears
to be hostile to the party producing him, in the ne
rest of the other party unwilling to give evidence
trgt avidp tIx
caused by want ofrecollecton, which suggestion may
assist"
Criminal Evidence and the page from which the
Judge Advocate has taken his citation is decided that
where witness examined in chief by his conduct in the
box shows himself decidedly adverset to the party calling
him. it is in the discretion Of the Judge to allow him to be
cross examined"
soin Murphy's case and p 2s7 Coleridge J. after
proracted examination of the person the stand says
My opinion is that this witness has conducted himself
In such way that Mr. Thesiger is entitled to exam
inc him."
soin Chapman's case, and p. $751; by Lord Abinger
C. B. II on the trial the witness shows any unfair bias
the counsel who calls him may examine him."
The opinion of Best j. cited by the Judge Advocate
was delivered in the OF Clark Jaery bryan and
Moody, 1851 that issue sent from the Court of
Chancery, accompanied with directions that the defc
dant should be examined witness 1t in this
that Best, c. j. said, "Where the witness necessarily
adverse he may be examined" 1t will not be pre-
tended that officers of the United States Government are
necessarily adverse to their own government
But is mere supererogaon accumulate authorities
upon point in regard to which there diversity nor
any conflict between the English and America an rules
The discretion OF the Court is govern the
that is be regulated by the conduct of the wit
ness after his examination shall have commenced
NOW what's the case which the Judge Advocate pre-.
sents1 He announces hsintention to call mot one butt
class OF Witnesses and ia regard to them ALL before an in
terrogaory is put he that all these gentemen
idea-are witnesses not merely hostile, but unwilling
speak the truth and who are to be placed by the Court
without the ordinary pale OF evidence
Protesting as we do against this in behalf of the wit
nesses themseive and on account of the precedents
dangerous in its consequences which it threatens
tabish we repeat TIE proposition which made yes
terday when this matter first started that the exa
mnaon be conducted in the usual manner until shall
appearuntl there shall be the least color lo suspectng
that the witness is unwilling to speak truth; pledg
ing ourselves, when that fact is established withdraw
all oppossn to the present request. We cannot give
better proc that our present application dictated by
capous temper nor any desire to avoid the search
It idle to speculate. the Judge Advocate has done
upon the relative position Of these witnesses and the de-
PENDANT The true question is not whether the witness
may te biased but whether he is in fact based
can only be established by the test of examination It
would be in the last degree unjust to set upon contrary
assumption involving does the violation ofduty and
the violation of an oath.
The facts stated by the Judge Advocate regard to
Midshpmen Hays and Tllotson totally irrelevant to
the matter before The Judge Advocate occupies the
place oil public prosecutor. Although he is undou bedy
bound to protect the party trial is the same time
his duty thoroughly to slit the evidence and these gen
temen may well be pardoned for entertaining impress.
sion that the proceeding his part of hostile
character and for declining, this ground to confer
with him the subject in private the especially
when rendered apparently superhuous by the
protracted and elaborate before the Court of
Enquiry. One of these gentlemen informed the Judge
Advocate that he ready give his testimony on the
stand and both at his disposition. He has no
right should the Court assume that their
examination will not be, far ulness fairness 60
every thing he could wish.
We earnestly and respectfully beg the Court to denv an
application which tends overturn on important and
well settled rule of evidence establish precedent of
very dangerous character, and which carr les with i'm
putations (wheter intentional no of a very painful
and irritating nature.
THEODORE sEDGwICK
OF Counsel, sc.
JupGE ApvocArE.-If the Court please will put in a
very brief replication. He then read the following
paper
The Counsel mistakes the object of
when he says is for the purpose Of mpeac or of
exortipg what witness wishes to withhold This in
would make its exercise every case an in
suit as much so when witness is called by the other
he true ohi tof |,