The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-02-03

Trial OF Commander Mckenzie.

Trial OF Commander Mckenzie.
SECOND Day, THURSDAY, FEE O.
All the members having arrived, the Court Mar
tia appointed to try Captain Mckenzie was formally
organized this morning at II o'clock. Very few
civilians were present.
The precept authorship the organization of the
Court was read by the Judge Advocate. 1t was
addressed to Captain John Dowaes, appointing him
President OF the Court, and directing him to try
Alexander Sldell Mckenzie and such other indivi-
duals as may be legally brought before the Court
The JUDGE ADVOCATE then asked Commander
Mckenzie If he was ready for trial, and if he had
any objections to any of the members of the Court
Capt. MCKENZIE replied that he was ready, and
that he had no objections against any of the men,
bers.
The members of the Court were then sworn bv
the Judge Advocate, and the latter by the Pres-
dent according to the usual form
The charges were then read by the Judge Adyo
cate. They are as follows:-
CHARGE l.
MURDER ON Board UNIrED STATES VESSEL ON THE
HIGH SEAS.
Specification lst In this that the said Commander Al
exander Sldell Mckenzie of the Navy COMMANDING the
u s. brig somers, being the high seas to wit In II
deg 81 min % north latitude and 81 deg 81 min Is
u,
the LIST day OF December A. D. lS42 did then and there
without form OF law, wiluy deliberately and with ma.
neck the main yard the Aforesaid brig until he was
dead Philip Spencer an a;ting midshpman then in the
n o. the United States thereby violating the 2s
proved April odd, 1900. 80 r
Specification ID. Exactly the same as the previous one
substituting Samuel Cromwell, Bostswains Mate "then
in the service of the United States and borne on the mu,
ter roll Of said brig for Philip Spencer, Acting Mid
hpn n ba gprv ooff haT tod
Specification 3D.. The the 3D. substituting Eli.
sha Small, seamen," for Samuel Cromwell boatswains
mate"
CHARGE ii.
oPfhEssi
Specification ist.in this, that the said Commander
Alexander Slidell Mckenzie Of the Navy Commanding
the U. brig Somers being the high seas to wit in
IL deg 81 min % north lat and 81 deg min 81 sec
Of December S4 did then and there without good and
sufficient cause, and without form law oppressiyey
KILL by hanging and causing to be hang ed by The
the main lard arm of the aforesaid brig Phip
an actin midshpman, then in the service of the United
States thereby violating the Sd article of the section
OF the article Of Congress, entitled IAN Act for the bet
ter government OF the Navy of the United States" sp
proved April %, 1910.
terstons in the second specifications of the first
charge.
Specification sdsame the second with the same al.
terauon az the tnlrd specihcaon Of the first charge
CHARGE ILL.,
ILLEGAL PuNIsBMENr.
Specification st-In this that the said Commander
u. -.
somers being the high SEAS to wit in II deg "a min
% north lat and 81 deg 81 mn sec west on from
Greenwich or tnereabous on the LIST day of December
thory and violate the 30th Article Of the Act of Con-
gress entitled An act for the better of the
Navy Of the United States" approved April 49, 1900 by
hanging and causing be hanged by the neck to the
main yard arm OF the said brig until he was dead Philip
Spencer an acting Midshpman then in the service
specicsii ID and sd-same as above with the alte
rations as in the second and third specifications of the first
charge
CONDUCT UNBEcoMNo AN OFFICER.
Spechcatlon-lD tins, that the said Commander Alex
ander Sidell Mckenzie, commanding the ~ s. brig Sc.
whilst in lat IL deg 81 mi % Sec north and on
81 leg D.! min As sec west from Greenwich, therea
bouts DID, contrary to the provisions Article 32d tho
Act Of Congress entitled IAN act for better govern.
msnt of the Navy OF the United States approved April o.
1900 the LIST Of December 1872 behave in an unoicer
like and unfeelng by addressing taunting and
oicerke sngusgeto Phip.spencer. acting Midshp-
the said Spencer then and Il expecting immediate
execution Of death upon him by the orders of said CON-
CHARGE
CRUELrY AND OrPREssror. -t'
Speci6cation.In this that the said Commander Alex.
Somers whilst on her last cruize, w.t. 3th
day OF September ls42 and the 25h day December OF
said year. did oppressvely and cruelty and marest
the crew OF the sand brig and nct upon them cruel
unnecessary punishment in violation the I'd article Of
the LIST section Of the Act of Congress- entitled An Act
for the better government OF the Navy OF the United
States" Approved April 10, 1900.
(signed) A. P. UPsHUR,
secretary Of the Navy
Navy Department, Jan %, ls4s
admit that Acting Mdshipman Philip Spencer Boat.
swain's Mate Samuel Cromwell, and Seaman Elisha
Small put to death by my order as Commander Of
the United States brig somers the time place men
TONED in the charges but as under existing crcumsan
sity, plead Not Guilty. to ali the charges.
ALEX. SLIDELL MCKENZIE,
Commander u 8. N.
u
Commander MCKENZIE then pleaded not guilty,
and asked permission TO have the assistance of John
Duer and Geo. Griffin, Esqs., as counsel.
This request was granted.
The JUDGE ADVOCATE then stated, that in relation
to charge fourth conduct unbecoming an officer"
he should prepare paper which he would probably
submit to the court Tomorrow, showing the reason
why he would not offer any evidence respecting it
until he should get the opinion Of the Attorney Ge-
neral.
The JUDGE ADVOCATE next Tread paper. in
which he expressed his opinion respecting his posi-
ton. He did not regard himself as occupying the
position OF public prosecutor before civil tribunal
PREsIpKNTcWhat is your object' Your duties
are clearly defined by law.
JUDGE ADvocATE-If Commodore Downes will
hear the paper read he will perceive that very object
is to avoid objections which have frequently been
urged. Mr. Norris then went on as follows
The JupeE ApvoeArE, before the examination of tes
mony begins desires state the Court that he does
not regard himself occupying the position Of prose-
cutting law officer in the civil tribunals His duty ne be
Judges at that time when raversers put trial
without the privilege Of counsel prosecuting officer
in the American Court where the benefit Of assistance
always allowed the defendant usually contents himself
with presenting prima face case and If compelled to
resort to witnesses believed to have favorable feeling
ward the defendant, studously than abso
utely ndspensibe because otherwise he would be pre-
vented from sitting their testimony by examination
or attacking il by way of positive Impeachment OF charac
ter should they bear witness contrary to that he believes
the truth the principle being that shall thus dis
credit his own witness But must not be made to take
position at all disabling from extracting the truth
transaction could by high witness prove the hanging
Of Midshpman Spencer, Cromwell and Small by
the order Of Commander Mckenzie and close the case
the rule Of law being, that after the death 10 shown 10
have occurred actually constructvely by the defend
ant Is presumed to be made and his duty prove
minor degree OF criminsty his entire justification or
excusability in efecting H. This will be the general
course in civil udcatures in order TO retain the of
cross examination and impeachment The duty OF Judge
Advocate sas have stated supposed to be that the
English Judge in without the privilege OF counsel
but the Judges rights to ask any question that
would be legal from either size shall expect there
FORE to be restricted bv the technical rules these par