The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-11
u. y. Circuit Court
Before Judge Betts.

plants against Commander Mckenzie and Lieut. Ganse-
wort.
MrDuER-Itis onywithn the last hour that have been
informed that expected 10 take part IN this argument
altogether unprepaIed, and cannot consent that the
argument should proceed to-day unless the opposite cou
sci give me till tomorrow TO reply 49, -
Judge BErrs-The opening arg ument will be offered
MIR DvER-of course II they give till to to
reply shall agree that they go but otherwise would
examine authorities and literally wholly unprepared
expected last evening that another counsel would
py the place am now called on to take.
Mr. BUTLER-We are, OF course perfectly willing that
Mr. Duer should have time to prepare.
Mr. 0Cossoh-we are altogether agreeable that Mr..
Duer should have the privilege he requests As remark
ed yesterday deem very desirable that your Honor
on what would be offered the part of the pro-
aspossible by the counsel ofths accused.
Mr.. DUER1I beg you will not say accused" object
most decidedly to the use Of such term applied to
such phrase is at least rather ncensiderate
Mr. OCoNNoR-Surely we are the accusing party, and
you are the objects OF an accusation.
MT. bUrLER-Will you be ready tomorrow
lay.
Judge BErr.-who opens the argument?
Mr. BUTLER then rose and thus addressed the Court
May please the CoUr-The questions which have been
submitted by the Grand Jury your Honor for the pur
first general enquiry whether the Circuit Court
United States has jurisdiction offences committed
board United States ship of ON the high seas
the territorial Jurisdiction of any particular State
within the admiralty and marine jurisdiction Of the Unit
ed states And secondly whether if the Courts of the
United States possess such urisdcton in respect any
Offences they that jurisdiction in regard the Of
fences complained Of to the Grand Jury in the papers sub
United 10 TINS Court by that body In these papers, the
Court will recolect complaints made against Alex
ander Sldel Mckenzie and Guert Gansevoort for the
murder OF two persons alleged to have been committed
the high board the United States brig somers out
OF the jurisdiction Of particular State but within the
admiralty and maritime Jurisdiction OF the United States;
and also for the crime Of mansaugher in procuring the
death OF one Elisha Small under the circumstances
The parties against whom these accusations prefer
red have been brought within the Southern District of
the State OF New York and this circumstance TAX
en- in connection with the other circumstances stated in
the complaint The answer which in the opinion of the
counsel for the compliments, should be given these
questions is that the Circuit Court of the United States
on board 20 sn S Ss
service of the United States that among those GER
tain offences Of which they suppose the civil courts of
the United States have Jurisdiction in particular offences
complained OF in the papers laid before the Grand Jury
are included that's to say that the offences of murder
and OF manslaughter though committed board United
states ship OF war; yet within the Jurisdiction of the
civil tribunals of the United States provided that these
dcon of oOT on me ngn seas out o the
mralty and maritime jurisdiction OF the United States
and provided also that the offenders have been brought
within the territorial jurisdiction of the United States
The Counsel for the will endeavor maintain
in the course of the discussion originated by these
questions that the answer which have just suggested
should be given to them. And before enter that dis
CUSTOM ldesre to place distinctly before the Court and
breadth Of the doctrines for which we contend am the
more DESTROYS to do this only because of the high
est Importance in all forensic discussions that the real
points OF controversy should be distinctly understood
the dispuants but because have believe and
indeed to knowor the matters connected with this SUBJ
the most vague and erroneous impressions entertain
ed not merely by the community large but even by
and the most venerable age in regard the
tended for by the Counsel for the prosecution And let
contend the court please that any civil tribunal u
rsdiction to try offence peculiar to the naval CODE
amy re s OF the rules and regulations for the
cerlike conduct any offence in fine which grows out of
the naval code regarded as and conradis
contend that any civil tribunal of the United States has
authority to bring befoe it. and try and punish any off,
ted States for offence which can be committed only by
person connected with the navy and standing in that
relate discipline oicerlike conduct or any other mat
ter which peculiar and exclusively appeainng to the
naval CODE belong we concede the outset exclusively
to the naval courts MARTIAL and this disposes n the Court
please, of considerable part of the opinion which read
last evening in some of city papers, and
cellor Kent 1t dsposes entirely of the quotation which
that learned juris has made from Lord Mansfield The
and in the case to which il appes further admit
just-is to be found in the case Of Sutton against
that casea Sutton was commander in the British
navy, and in an action in which the squadron to which
his vessel was attached was supposed by Commodore
Johnston he defendan not have brought his vessel
into action as promptly to have borne himself gal.
anty as the exgency Of the particular service and the
honor of the flag requred and in the of that
rogave and power which belongs a naval commander
and which equally with Lord Mansfield and Chancellor
Kent regard in pensabe to the vgor of that arm
Of the national defence-Commodore Johnston suspended
that ohcer and brought him before Court of Inquiry on
the charges which have described. The officer was
tried on these charges and acquitted by the Court
Inquiry. Commander Sutton then brings q civil action
against Commodore Johnston for the recovery of DANA
ges on the ground that he had acted maciousy in this
matter and with having omitted and delayed to bring the
case in due time before the Court of Inquiry and with
having conducted himself in relatihn these charges
as to have exposed unnecessarily the character and
of the plaintiff to doubt and suspicion and which al.
the Court of Inquiry had yet laid the foundation Of an
ton for damages against Com Johnston The
what long in s details but have presented enough off
show that was which grew of that naval CODE
the peculiar offences belonging to and growing out of
which must necessarily belong to the purvieu control
and decision OF the naval courts and which do
within the jurisdiction of the civil courts Another case
to which some of thel public discussions of this SUI
iect been made is Houghton against Moore
in 5th of Peters, Rep. D. this case grew out of pro
ceeding under the constitution and laws of the United
States by virtue Of which the President had called
service portion Of the militia OF the State of Penn.
sylvania during the last with Great Britain.
The party alleged to be delinquent in not attending
been duly served upon him in pursuance of the Presi
dents rsquiston by his proper commanding scer and
of Pennsylvania and compo ed of officers the militia OF
that State In the course that Judge Wash
referred, and with which | have agreed, that Of
fences belonging exclusively to the military code, be.
long to the military tribunals alone and the language
used in that case by the Judge characteristics distinctly
the nature OF this offence separate from those growing
out ofthe general law of the land Having stated wha
we do not claim in this will now proceed 10 state
what we do claim. We only claim this this Court in com
mon with the Circuit Courts of the United States has u
rsdiction OF those offences which known to the
common law, at the time OF the adoption of the federal
constitution, capital crimes and elones as contrads
tnguished from misdemeanors and also plainly uni
versay, beyond all doubt cavi contradistinq
from those merely military offences OF which have spo
ken And we claim this jurisdiction, if the Court please
with these specific and very important qualifications
first that the offence shall have been committed on the
high seas out OF the jurisdiction of any particular State
and within the admiralty and maritime Jurisdiction oil
the United states; and secondly that the offender shall
have been brought within the territory of the United
states without having been tried for the offence by
val Court Martial out OF the territorial jurisdiction of the
United States And the Court will perceive that con-
| sstently with the concession which | have made
| In regard 10 offences purely military and naval
we do not claim-consistenty with these qua6c alton.
annexed to the propositions which do maintain the