The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-02-12
Trial OF Commands Mackenzie.
TENTH DAY-FEB. 1

The proceedings Of the Court Martial were resu-
med at the usual hour in the chapel OF the Navy
Yard. The Judge Advocate presented the following
paper:
will be remembered that at the outset of this case
announced that an important point foreseen the
ed We yesterday reached that point when we came to
the declaration Of Small in respect to Cromwell in the
conversation with Lieut. osnssvoort. and is again re-
newed by the offer Of the letter of Commander Mackenzie
to his officers and their reply, and the testimony taken
before the council Of ocers A record would not
at all admissible against Mr. Spencer, Cromwell and
Small they alive It the proceedings of
lawful court As evidence show the guilt OF any Of
the parties and their connection is wholly unallowable
an investigation document wholly unknown to the law
and cannot be pretended that il the record of these
trials Trials, as such, Commander Mackenzie had no
higher officers than the commander ola single ship
Placed however in position Of responsibility with the
allowing the TO and the
ships Of war at his discretion and send them abroad sngy
or IN squadrons as he f it cannot be pretended
that by being placed out Of the reach of the composite
materials for court martial his hands are tied and that
he must endure mutiny and murder without any powers
OF counteraction. But there rights also other
hand; the officer who chances to be in single
ship not without prerogatives The ordinary and
prudence offs man OF reasonable Judgment caution and
6rmness must become his protection II he were attached
to squadron, he would be entitled to trial before
court martial and the ratification Of his sentence in cap
tal case, by vote Of thirds OF the His
ton with single ship does not outlaw him. Though
court SUCH be organized is the duty prudence
s
ed him. 3D. if that is impossible, to sord him opporu
nifty to hear the charge examine the testimony and con-
front the witnesses and most serious and overwhelming
necessity would needs have to be shown dispense with
this due care. Malice sof two kinds st malice in fact
I'd malice in law Malice in fact Is that evil and malignant
spirit which does bad action from evil intention "There
is another and that large Glass when the question of in
snon Is no way material long the act voluntarily
DONE In reference to such the distinction Of ma
lice in law has originated Justice Butler has explained
il in few words, in Bromsge Presser, in 10 Eng.
occupation, i'll will against person; but in
its legal sense il wrongful act done Intentional
w." The whole law has been thoroughly colIuted by
Lord Ellenborough in Rex Picton, 80 Howell, st.
Trials, 49, establishing that the commission of wrong
full act even the best ADVICE does not ene the party
to an acquita because ignorance intention mott
be allowed TO do away with the right Of others To
prevent undue want OF caution in future the public law
holds the most honest patriotic and we'll inenoned per-
sons liable for wrongful acts however bona fde DONE
With this opinion, am constrained by decisions to think
the testimony only admissible to repel malice in fact
impractcable to allow at the investigation Mr. Spencer
Cromwell and Small the opportunity Of presence cross
and that the execution was ndispensably necessary,
took place for the purpose Of safety to the vessel
maintenance Of command and that the court
sfed Of the legally established guilt Of Mr. Spencer,
Cromwell and Small by the testimony before them
To omit this to fall short of ordinary caution and then
to allow one to appeal to wrongful to defend him
self againsthe consequences of another would be per-
version OF sense and legal principles This is my stern
of
may contest and impeach them in his defence admit
that the government at must of propriey, be
summary than on land, and claim more allowance.
WILLIAM H. NORRIS,
Judge Advocate.
The correspondence between Captain Mckenzie
and his officers on board the Somers was admitted
evidence and was read. As the letters were pub
lished in the proceedings of the Court of Enquiry,
they need not be now given. The testimony taken
before the Council of Officers was decided to be in
admissible.
The examination of Lieut.. Gansevoort was then
resumed, but nothing new different from his for
mer testimony before the Court of Enquiry was ILL
cited
The Court adjourned till Monday, at the usual
hour.