Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1843-02-10

received the opinion Of the Attorney General.
"Ihe Judge advocate then read the following
paper, which he stated was drawn up with a
view OF avoiding objections hereafter
The Judge advocate, before the examination
OF testimony begins, desires to state to the
Court that he does not regard himself as oecu.
pyng the position of prosecuting law officer in
the civil tribunals. His duty he believes akin to
that which was dcvolved on the English Judges
at that time when traversers were put on trial
without the privilege of counsel, A prosecu.
ting officer in the American Court, where the
benefit OF assistance is always allowed the de.
PENDANT, usually contents himself with present.
ing prma iacie case, and if compelled to resort
to witnesses believed to have favorable feeling
toward the defendant, studously uses no more
than is absolutely indispensable because 9TH
erwise he would be prevented from sitting their
testimony by cross examination, or attacking by
way OF positive impeachment of character
should they bear witness contrary to what he be-
ileves the truth, the principle being that no one
| shall thus discredIt his ocn witness.
But | must not be made to take position at
all disabling me from extracting the truth of the
transaction. | could by single witness proye
the hanging Of Midshipman Spencer, seamen
Cromwell and Small by order of Commander
Mackenzie, and close the case !; the rule of law
being, that after the death is shown TO have oc.
CURED, actually or constructively by the defend
ant, 1t is presumed to be murder, and it is his
duty to prove minor degree of criminality or his
entire justification or eXcusability in effecting
1t. This will be the general course in civil Judi.
catures in orderto retain the rights of cross-ex-
animation and impeachment. The duty of a
Judge advocate is as have stated, supposed to
be that of the English Judge in cases without
the privilege of counsel, but the Judges rights
were, 10 ask ony7,ueStion that couM be legal from,
either side. shall not expect, therefore, t. be
restricted by the technical rules in these partic.
ulars, and be treated and restrained as an ordi.
nary prosecutor.
wish to elicit the whole truth, whether ia.
vorable or adverse to the defendant, and if do
not extract what legally ought to serve him
equally with his own counsel, it will be only
from inferior capacity, knowledge, and that sa-
gaclty which partisan feeling does only give.
But must be appraised in advance by the de.
| fendant and his counsel of their intended
course. Do they design not to contradict nv
privilege to ask any questions that would be
legal from either side. or is it meant after the
confusion of sovenly practice before Courts
Martial, to insist upon my duty as the English
Judge, for the benefit of the defendant, but as
the American prosecutor for the disadvantage
VI 'hS Wv L tDcTelOTc most TeSDoCt-
fully desire Of the defendant and his counsel,
to signify what position they would prefer the
JudgeIadvocate to occupy If am not to have.
without exception, the liberty of an examina.
ton in the nature of cross examination of
| my own witnesses in such cases as nv iudr
ment would imply it as necessary for the at.
talnment Of truth, lei the defendant say so, and
shall conduct the cause after the manner of a
law officer IN ordinary cases before civil tri-
bunal. shall call only the witnesses who
will make the case against the defendant.
Mr.. Duer said that he quite agreed with the
judge advocate that his duties were of a Judi
clal character, and that he did not stand in the
character Of public prosecutor. Of course
he was not to be confined by any technical rules
in the examination of witnesses.
| The judge advocate continued This is
thought by the Government to be a case of great
Importance, and 1t is not unlikely that an asso-
clate of mastery ability, and whose CAPACITY has
been enabled by age to command the respect O,
the whole country, may be sent here as co.
adjutor in consultation shall not proceed in
the trial till ] am advised whether such is the
design of the Government. delay very de.
sIrabe and expedlent under any Court, as per.
ceive an important point at the outset of this
cause, have not had an opportunity from the
| regency OF my appointment and the difficulty
of commanding the use of books when away
from ones own office, of thoroughly examin.
ing.
| The Court was here cleared to allow the
members to deliberate upon the propriety o.
receiving the paper submitted by the Judge ad
voaate, and after the lapse of one hour was re
opened, when it was announced that the Cour
had decided that the paper just read should q
upon the records of the Court, and that tho
| chn A. l.
Secretary OF the Navy, appointing him to thu
Court.
This being done, the Court adjourned to thi
day, at 10, A. NJ
SATURDAY, Feb, d.
Previous to the assembling of the Court THU
morning, MIR. b. F. Butler and the Judge Ad
vocate had long conversation together afte
which MIR. Butler occupied a seat at side ia
BILE and took extensive notes of the proceed
ings.
The President called the members to orde
at III O'Clock, all being present except Cap-
} Smith, who is still confined to his room bv Sc
we're lndispostion. The Judge advocate state
to the Court that an eminent member of tn
New York Bar had paper which he desire
to lay before the Court. He himself had see
the paper, and it contained nothing improper
The President said it had better be submit
ted in secret conclave.
The Judge Advocate, after the consultatio
, with Mr. Butler, said it was an application fc
permission for Messrs. Butler and Charlie
O'Connor, of the N. York bar, to act as Cour
sci on the part of the friends of the late Philll
Spencer
The Court was then cleared to enable tn
Court to decide on the application.
> On the re.opening of the Court, the Judg
Advocate read the following paper:
The undersigned beg to state that they hay
been employed by the relatives of acting Mic
shipman Philip Spencer, one of the persons ft
the murder of whom Commander Mckenzie
on trial, to attend the trial and take part there
on, as counsel if permitted by the Court. Tn
undersigned, therefore, most respectfully reque,
: that they may be permitted as such counsel
: be present to examine and cross-examine in
4 witnesses produced, by propoundng such que.
q lions as may be approved by the Court, and
offer from time to time such suggestions in rel;
. ton to the proceedings, and to present sue
comments on the testimony when conclude
!. subject to the like appreciation of the Court
as they may deem necessary. The undersigr
|, ed respectfully offer their opinion that the cou
+ possesses full power to do so, and that the n;
', ture of the inyp St uation 70 Ia boJ 81 IL ::