The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-05-23
Gaze OF Com m.nder MackenzIe.
Before the Hon. Edward King President Of the First Ju
dicial District Of Pennsvvapia.

Care OF Commander Mackenzie.
Before the Hon. Edward King President Of the First Ju
dcial District OF Pennsylvania.
MAY 90 lsss-An application was made to the Hon.
Edward King, to coerce certain witnesses to answer I'M
der Letters Rogaory. from the Supreme Court Of New
York requesting the Court OF Common Pleas OF Philade
them to answer certain nserroratories attached to the
said Letters Dogatory having for their object the sscer
tainment frsm the Witnesses Captain Gwynn. and Com
nodore Reed (who two Of the members oil the late
Court Maral) the number OF the votes given for and
against Capt A. g. mackenzie, each OF the charges
and specifications preferred against him. The witnesses
appeared an filed written protest against testifyng IN
slsting -
ist That there was nc adequate evidence that the
sentence of the Court Martial had been approved by the
President of the United States without which their oahs
bound them not to testify.
ought exercise his discretionary powers to compel
them to testify in matter ~ which might operate
hereafter injurious to the service as precedent G De-
cause docs not appear that the testimony sought from
them was relevant TO the pending in New YORK;
and 0 because under all the Circumstances might be
doubtful whether the Supreme Court of New York them
selves would compel the witnesses to testify and in the
argument, although not stated in the protest. was In
sisted thai the sw was merely brought with view 10
3D. That the Letters Rogatory themselves WERE accord
ing TO the Statute Laws and Practice Of New York. r
regular
And 4th. that if all these failed yet nasmuch
s this was an application to the discretion OF the Judge
these reasons would il insufficient, separately be sum
cent taken together induce the Judge to refuse to
exercise the discretion asked for.
In delivering his oral opinion, his honor Judge King
somewhat inverted the order Of these and COM
menced by observing the 4th objection, that al
though was true the application to him made to the
sound discretion of the like all other judicial
discretion to be exercised arbitrarily 1t
courtesy proper to be extended by all judicial tribunals
oher to aid in the administration Of Justice and
peculiarly to be regarded when made by the tribunals of
sister States The several States could not be regarded
towards each other in this particular foreign States
that the proper view to regsrd the American people
great whole and to extend the citizens Of each
state as far practicable all the adv antsges which
could be given to own citizens under laws
That such was of all others calculated to
maintain harmony between the several States well
between the . citizens composing their communities. to
that means to promote the work of civil liberty which
our Union was instituted to effect. After further remarks
IN the same spirit he concluded BY observing that he felt
himself bound to comply with the request Of the Supreme
Court of New York to its fullest extent where such
quest was properly laid before him.
As to the first exception, he remarked that it
question OF evidence urou which he could entertain
doubt from the proofs now before him The proofs
sisted in part Of letter from the Secretary of the Navy
to Captain Mackenzie informing him that the sentence
ofhe court martial in his had been affirmed by the
to consider himself as awaiting orders. That although
the official communication in the "Msdisonan" appeared
doubt IN his mind upon the point that therefore, on this
ground the officer: composing the court were not pro
court when legally required
As to the second exception the Judge remarked that
however unwilling he would be to disregard the feelings
OF the officers now called to testify establish pre-
cedent which might in any way, weaken the naval ann
OF the government yet that he in all this no legal bar
to the abduction of evidence which citizen is entitled
under the laws That in the administration of justice
ferpetualy happens that individuals are compelled to
testify as to matters which operate against their feelings
vet such reason never avals against the rule which
makes persons liable to testify in courts of JUSTICE and all
good citizens must yield their private feelings TO the good
paid for civil liberty. And that however reluctant he
ever would be and now compel gentlemen situated
he could not regard the rules OF law of any value
he were hesitate to assert them in case like the pre-
As to the relevancy of the testimony, the Judge
marked that it was matter exclusively for the decision
OF tie New York tribunal That he was bound to pre-
that Court as reavan that he to to reg
late his by adudguQ upon the relevancy orr
would make the benefit proposed to be derived by such
letters in many cases. totally illusory. That his
act to do il snd eecnay and object
would be best accomplished by leaving TO the New York
trbunalhe solution Of the point whether the questions
to- were relevant or not That it, as has been sad this
was an action brought by Captain Mackenzie for
capital punishment by the vote minority and that mir
nory was produced bv the tenderness, pity of sim
was OF the utmost Importance to him TO
each charge. Upon this view of the subject the ques
ons were not only relevant but Indispensable TO pro-
per investigation OF the cause The Judge, however,
imagined that there might be in which the testimo
mony would b. 80 manifesy inappcable to the Of
action as to induce him to refuse to witness TO
testify but that must be gross case indeed that would
Justify him in taking such attitude towards thecou
As TO the doubt whether the Supreme Court Of New
YORK would compel the witnesses TO testify it doubt
to be resolved by that tribunal ITSELF and which be
had no sort Of right decide for them the idea that
this was mere fishing suit and not brought for the OF.
eet whch i PurPort. and merely intended to pry into
lift could have been proved to his satisfaction that such
was the true character of the proceeding he would OF
the process of the law for any such and he
would not permit himself TO be used instrument in
the hands Of airy man. or set Of men, to accomplish such
result and he quite satisfied that neither the Supreme
Court of New York. nor any tribunal in the United
States would for moment permit such abuse Of their
authority But nothing in the case showed that this suit
was any othe than bona de suit and his impression
was that such was its true character.
which he felt any dcuty wa. whether the letters Ro
gaory were issued according to the laws, and prsc
lice Of the courts Of New York. The result of his own
investigations led him 10 entertain some doubts upon
that subject; and while he admitted that he ought in
general to regard letters Rogatery under the seal of
he had como to the conclusion to defer the final dec
sion Of this matter to give the witnesses opportunity
preme Court OF New York. That if it was true, az al
Legged that these letters had been issued contrary to law
terrain motion behalf Of these witnesses, Of any
other persons compromised by the issuing leterso
qussh the proceeding Any court would do in vndi-
cation Of its own dignity nothing being more repulsive
to court Of justice, g.osser outrage upon it, than
the unauthorized use Of its process That such undoubt
edy would be its action similarly issuing from his
court. He concluded by declaring that II the Supreme
Court declined interfering thereby recognising the regu
lary of the letters Rogatory all his doubts would be
moved on that subject and the witnesses pre-
pared next Saturday, to the inter- aores
tached to the letters Rogatory.
After the conclusion OF the opinion, the counsel
quested his honor Judge Kent to reduce 10 writing to
which he replied that he would comply with the request
II the pressure Of his public engagements would enable
him to find time to do so.
Literary Notices.
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