The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-13


the complaint made to this grand jury and in relation to
that and in order to show that that has urisdc
tion remark, that although is Gettled law Chan
celor Kent has remarked that you may plead in civil
the tendency OF former acton Tor the
yet he is mistaken in surprising that that rule applies to
criminal And the experience OF that distinguished
judge he lett the bench has not been very extensive
criminal cases it is not at all extraordinary perhaps
that he should have fallen into this error for an error un
doubtedly is Nothing is better settled IN the crimra
law than the principle that you cannot plead
in abatement another indictment pending LOT the
same offence, even although that other indictment
be in the very court Until the other indictment
passes into judgment either of acquttai CT oonvcuon
pleaded. In this respect the rule IS different
in criminal courts from that which obtains in civil courts
q Chty's Criminal Law, 4l6) The cases referred TO by
Mr. Chty sustans the principle to the fullest extent
pages 1859 462s There is rule in practice better
settled than hatnor does the provision in the 9Th amend
any person be twice put in jeopardy Tor me or mp aP
ply to of pending trial Hawkins ID book, 80 oh
Blackstone, 4h vol. 355. In the construction given 10
this provision by decision of the supreme Court
Of the u States it has been held and IL perfectly settled
that the party shall not be- tried the second time for the
offence he has been convicted or acquitted
by the verdict of jury and Judgment been passed IL has
always been held not 10 apply when jury has been dis
charged without agreeing or when Judgment has been
arrested. The case of Goodwin against - in 18TH
Johnston ls9, is in point The defendant was TIED Tor
murder the jury could not agree, and we're discharged
yet he afterwards brought by the District Attorney
the trial The objection raised that he had already
been tried and put in jeopardy oil his le and that ec
ton was thoroughly discussed by the most eminent
counsel then the bar, and in that the Supreme
Court ruled that the party had not previously been put
legal jeopardy. The doctrine has been
Circuit Courts of the u States of Philadelphia and Bos
ton. 4th of Hawking Circuit Court Repors-U. States
against Haskell 81 vol, Story $780, sec $751; Wheaton
$40, u. States against Peters. may be referred to
in connection with those ! before cited, showing
you cannot plead pending indictment in abatement in
criminal ,ha next refer showing that the
proceedings in the fest must have been free from
in order to prove bar to second trial. Hawkins
Book p CHI. Chilly AS s64 3d. and OF the
Oldest cases, William VauXs case, 4th Cokes Reports
"a; that it is impossible for Commandsr Mckenzie
to plead the tendency Of these proceedings in abatement
until after they have gone into judgment; and then the
question will come whether it by Court OF rghtful
jurisdiction and authority the question may be raised
the Supreme Court the case Of Goodwin page of Haw
kns where it is said expressly If error has entered
into the Judgment Will be no bar the second trial
cpe just and sacred one that no man shall be
twice put in jeopardy for his life is true yet the former
trial was an erroneous one the Court had no jurisdc-
on he ought not in any than in law to be
exempt from trial b fore competent Court on alawi u
charge And in regard to the peculiar constitution OF that
naval martial it to be observed that the proceed
ngs Of martial do not necessarily issue in Judgment
one way or the other ss those courts they
subject the revision of the Secretary of the Navy
and OF the President SO that consfa there have
been any the proceedings difference OF opinion
in regard to the resu there may be withholding OF the
appreciation OF the executive authority At all events We
must the end OF that proceeding before It can be right
fully set as an objection TO the Jurisdiction oil the CIR
cult Court of the United States. And the subject of
jurisdiction will take the trouble Of adding that there
no undue presumption IL the assumption that there Is
doubt with regard to these questions Well if there be
doubt in regard the legal authority OF the Court Martial
this case, then do submit that that why
the Circuit Court should take cognzance of the case so
far least suggested Yesterday by the Court as in
the West Point The Court had doubts as to its urs
dicton to inquire into that but it instructed the
Grand Jury find the BILL for the very purpose OF obtain
ing the solution OF the doubts of the Court by the highest
authority wit the Court of the United States
Well then st all events it is doubtful question whether
this offence be tried Court Martial, or whether it
belongs the Civil Court 1t then there be doubt ought
not to be solved by the very highest auth ority
not oil the greatest importance that should he so settled
that hereafter be called in question lit not
in NJ uhnnI
be settled and defnively settled How be settled
by the Supreme Court Of the United States, unless this
being carried up7 If the be left in the Naval Court
Martial, and cognizance be taken Of by the Civil
Courts, the doubt remains unless the Court Martial be
competent to remove it, or he removed by the Executive
And Sir IA position in which tho nrposite ConSsl
and that in country, where it is grand principle
t. at the Civil Courts supreme the Military :
Our object for avow it as the true object of my learned
asoca and mysen the professional attention we have
given to the subject has been to bring this subject before
that tribunal, whose august authority, whose profound
know ledge OF the law whose hold is strong in the
confidence of the people Of the United States that when
they pronounce their judgment all will be satisfied Are
they afraid to their case to the Supreme Court Is
there any ground for surprising that Naval officer is
afraid of having tested whether he Is to oe tried by the
esprit du corps Of his associates always honorable when
kept within proper bounds, but which mus always be
regarded by the people the United States operating
even uuwittingy, IN manner prtjudciai TO impartial
ustice7 Are there not insist reasons OF the strongest
policy essential to the maintenance OF justice itself that
this should be disposed Of in such way as will bring
before the hiehes tribunal OF country And sucha
be taken in it'll the usual prac
ce why should it not be aken1l believe that can appeal
to who hear of great experience In criminal
cases. well to the En- ssh au horities in van for
in which serious doubt entertained of the pro-
rriey of bringing in bill in this way, in order to
the Jurisdiction OF the Court. Your to bring
in BILL be reviewed But submit that in accor.
dance with general practice and for the reasons have
ud BILL to the end that the objections TO Jurisdiction Of
this Court may be distinctly presented and led su
reiyao opmu nd n fin &c isiO havo ANAL.
all have say respecting the general argument. far
it relates to Commander Mckenzie end the crime of
murder with which he stands charged. have however
observations to add with respect to the urge OF
manslaugher Mr.. Cleveland has preferred the charge
of manslaughter against Commander Mckenzie and
Lieut.. Gansevoort all gng it to have been committed in
the putting death of Elisha Small We submit that the
only Court having jurisdiction over the crime Of man.
Court of the United States The act OF 1900 section ~
distinctly provides for granddaughter, by that name
the high and in the act OF 1900 establishing rules
and regulations for the government of the navy there
provision made for the crime of manslaughter These
rules for the of the navy copied almost
perbstim, from the English code-the 22d OF George
H. The 18th section Of the English rules pro-
vides for the crime Of murder, to- which the Court
will lind easy reference IN Tompkns Dicon
airy. The third article provides that if any
officer other person in the Navy, shall be found guilty
any other scandolous conduct tending the de-
sruction ofgood morals shall be- &c sc Is homcide of
that particular grade, included in these general terms
"scsndalous conduct" Isubmit not. The offences de-
fined are cruelty, Sc. sc. Now II may be said that
slaughter is in one sense "scandaious conduct Ger
tanly it is in sense, but is it 80 in legal SET Can
be tried for homicide mnnsaughter under these
words If,hey broad enough to include homicide Of
the grade Of mansaugher also they broad enough
include murder; and murder had not been included
in another article they might, with equal and
authority have preferred the char against him under
these words lift had been intended that mansaug liter
should be tried by Court Msrtas would 1t have been
vered up in those words when they could said by single
word that II should be tried Were they bound IL so
they meant it, when msnslaughter distinct offence
by the law and by the act OF $780, employ the
wordl Finding that this common law tvson of murdtr
into homicide and mansaughter recognized, would
1t not be against all the rules Of Interpretation to bring in
mapslaughtcr under these words words evidently cscu
lated to the whole range of laous ehaviour
calculated to subver good morals1 We ask then that in
relation to the subject OF mansaughter. The Grand
Jury should be instructed not only that IT IS
within the jurisdiction of the Circuit Court. out
that it is the only Court which has jurisdiction over It,
Mr.. DuER begged to call the attention Of Nlr. Butler TO