The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-02-04

Trial OF Commander Mckenzie.

Trial OF Commander Mckenzie.
THIRD DAY--FRIDAY, FEB. g.
The Court resumed its proceedings at 10 O'Clock
| this morning
MIR. ScoLEs made private application to the
| Judge Advocate for the purpose of ascertanng
whether he, as counsel for Mrs. Cromwell, could
occupy seat at the table with the members of the
Court Martial. The Judge Advocate informed Mr.
Scoles that IN the first place there was no room for
him at the table, and in the second place, that he
was not that Mr. Scoles had any right to occu-
| pv such place. Mr.. Scoles accordingly ne
cessated to take up his position al the end of the
| reporters desk.
After remaining in secret session for upwards of
| an hour, the Court was re-opened to the public
Mr.. Wales was thea called and not being present,
| he was sentfor. In the mean time
MIR. DUER addres sed the Court as follows MAY
be allowed to say few words in relation to what
! said yesterday? Yesterday the Judge Advocate
read paper IN which he stated his own views in re-
ation to his position and the performance of his du-
| ties, and introduced some opinions in reference to
his being exonerated and discharged from the OBJ
servance OF the ordinary rules Of evidence to which
we too rashlyo the part of defendant, gave our
assent. We done so, knowing that the present de-
fendant could not by any possibility, be aectedby
| any departure from the ordinary mode of examna-
ton OF witnesses, aware that IN whatever manner
| they were examined, neither their veracity could
| be impeached nor their testimony shaken. But we
did not advert to the necessary effect of this as
sent on the rights of other parties placed ina similar
| position. am now convinced that if the course
| uggested by the Judge Advocate be pursued,
1t will be dangerous to the rights OF the navy, and
preludlca to the of justice and for that
| son we propose to retract or modify the assent
which we gave yesterday 1t is true that the duties
| OF the Judge Advocate are in a manner judicial !;
meaning that he is TO discharge them in a judicial
spirit, that he must act from of public duty
and regard to truth and Justice and that he is
N na bara fort ,a
OF procuring the conviction OF the party accused.
| But here our admission ends. For though the
duties of the Judge Advocate are to be
yet he is IN fact public prosecutor. He comes here
tor the very purpose OF sustaining the charges pre-
ierred, and adducing evidence in support of them
Thus necessarily sustaining the character of pub
| lie prosecutor, he cannot be relieved from those
rules which the law has wisely imposed on all per-
sons who conduct prosecution-who undertake.
no matter from what motives, to establish given
charge. Now, what are those rules II he calls
witness 1t Is tor the purpose OF sustaining charge
he ought not to call him unless he knows that he
adduce material evidence in the case If he calls
witness, he becomes witness in support OF that
charge, and he Is OF necessity bound by his testimony
The Judge Advocate has right having called
| witness to turn round and say "this man is unwor
thy OF credit" He has right when he has called
| him. and so averred by that very act his own be-
et that the testimony of that witness TO be receiv
ed, to put set OF questions for the purpose of
peaching his credibility. Nor has he any right to
put leading questions to witnesses he has called that
is, he has right to put questions that by their very
form suggest the answers he wishes to be given 1t
any departure from the ordinary rules of law in
| these respects were allowed here, look what would
he the consequences and it is these consequences
sense that this precedent would be highly preludl-
cia and dangerous to the rights of the navy that has
led me TO this explanation. 1t would take from the
defendant the conduct of his own defence-it
| would -
JUDGE ADvocATE-I would remark
| Mr.. DUER-Please hear me out
JUDGE ApvocATE-I merely desired to suggest the
| propriety OF having this explanation in writing.
Mr.. DUER-The reason offer the explanation at
| all, is
| PREsDENT-I understand the thing perfectly well:
and IT ne (Mr Duer had not assented it would have
been put aside at once, yesterday. Ii is OF course
proper that this dissent should be writing, because
the assent was yesterday received, and the state
ment OF the Judge Advocate placed on the record.
| II objections are offered to what has been thus
placed on the record, it is proper that they should
have place there also, that the whole case may
be placed before the revising power as well as be-
fore ourselves
| Mr.. DrER-I will put it in writing | was how
ever merely going TO state in two words the rea-
sons-the consequences. The Judge Advocate
would take the case out of the defendants hands
and moreover theJudgs Advocate would be released
from rules which the defendant is still bound to fol-
low. The defendant cannot crosse xamine his own
witnesses, cannot discredt them, nor put any lead
ing questions. This condition of the parties would
| be In the highest degree preudlcial.
Mr.. DuER then prepared and handed in the fol-
lowing protest.
"The COUNSEL for defendant beg leave most re-
specltuly TO state that in giving the posi-
items oil the Judge Advocate that his duties are OF
judicial character, and that he was bound to protect
the rights OF the accused, they not to be re-
garded asserting TO any departure from the es,a-
bished usage in the mode of conducting the prose-
cutlon, or to any violation Of the known rules OF
evidence, the due observance of which they regard
as essential to the discovery of the truh-the due
administration OF Justice, and the rights of the
Navy"
The JUDGE ADVOCATE was proceeding to make
some remarks, when the President ordered the
Court TO be again cleared
On its re-openlng, the Judge Advocate read the
following paper
1.-The JUDGE ADVOCATE states to the Court that he
has not as yet been furnished by the Department
with any list OF witnesses the part of the govern
ment that he has not had an opportunity of con-
versing with any of the Witnesses, of whose Names
except from rumor, he is ignorant and that he must
therefore have some time for the purpose of con-
versaton with the officers of the Somers before COM
menclng the prosecution. Two subpnnas have
| been issued, but have not yet been returned. The
| Judge Advocate does not expect that any tedious
delay will be necessary, nor that he will much lon
ger respass on the patience of the Court, but he
respectfully asks the Court TO adjourn until to NOR
row at III O'Clock, when 1t is anticipated that all
grounds of further delay shall have been removed"
The Court Immediately adjourned
Fort Wayne, Indiana.