New-York daily tribune., 1843-02-09
Naval Court Martial ON bonra the u. 9.
Ship North Carolina.

the previous days proceedings having been read
Mr.. DUER read the following statement of rea,
sons why the question propounded by the Judge
Advocate to Mr.. Wales should no, be allowed by
the Court
The Counsel for the accnsed respectfully states the
Court thai The following question yesterday offered by
the Judge Advocate 10 The witness Jas. W. Wales,
cross-e1annatlon:
:" When Mr Spencer told you he intended to make a
scuie some night when he had The mid watch with his
overheard did you Tell him that would be likely
the men and prevent him from going with his plan which
He oo yoe was 10 open The armcbest and distribute the
arus 10 the men, and station them the hatches and
ceed in 10 the cabin murder the
and the officers in the wadroom and sleeraee and Of slew
ing the to alter guns around rake The deck and
cali mp the crew as select these be thrown overheard
considering be had but 20 associates in a of l2e
and boys!'
TO question the Counsel for the accused objected and
10 compliance with The expressed wishes OF the Court be
his protest against its admission form lha,
may ente his objections TO be placed on the record Of the
Court.
The Counses protests against the admission of this ques-
lion the following grounds IL is question merely in
orm but in reality intent argument brief
put doubtless TO be followed by others OF similar
which acrcss-eIaminatien allowed It's object
tci! any fact material to The bat TO prejudice the de
nce OF the accused and TO enrap the Witness and finally
under the precedent of It's admission shcud the question
be received the discretion of the Judge Advocate in The
examination of witnesses 10 be unlimited.
The Counsel for the accused is fully aware hst great
ande is allowed in the crosseIaminalion OF witnesses,
he exercise OF this privileged freedom; but he freedom
ross examination has certain lims-t is subject certain
rules and the observance OF those rules indispensable
prevent prive that duly restrained is Rvai1aue, from
being converted by its abuse dangerous cease The
cross examination OF witnesses, SHOULD he released from
many OF The rules Of evidence but the equal
y require that rules should be rgdly enforced Thus
Counsel not permitted IN cross examining witness 10
That facts have been proved OF which evidence
has been given or TO lmpu,e to the witness language and
expressions that lie bad used Such questions the
law condemns nsidouS and ensnarng, their obj
is TO enrap The witness into the admission OF fact which,
had been made the subject of direct inquiry he would
certainly have denied. Their object is upon bis
stRony construction he never intended should bear
But these the only restrictions which the
poses examination. There is another Imitation
uing from theyery nature Of the subject There
,an purposes for which cross examination is allowed and
h these its legitimate Objects every question tka put
10 the witness must be consistent. The only legitimate OBJ
testimony of additional facts, 10 obtain answer that
may diScre1t the witness II question neither seeks nfor
nation from witness seeks 10 discrrdt him. it must be
relevant and may be liable 20 much graver imputaon
Counsel has right under the pretext of examining
Sitnes 10 in innate bis views o the merits and justice
ii case He has rgh, at The outset of investigation
prejudice attempt prejudice the mind ei the Cour
and OF the Public by indirect Argument 10 which, from
Is very form the accused has opportunity of immediate
repy-no opportunity OF replying until the close OF pro-
racted trial. when the impression made may have become
ndelibe. When such attempts are made in Court OF
Civil Jurisdiction they are invariably over ruled and re-
buked.
1t with great sincere regret proceed apply
these remarks 10 the quesios TO which object but am
compelled TO ask is il The object OF the question either
and compelled 10 answer-neitier! Does the Judge
Advocate prove at the witness held the ccnver
saoD with Mr. Spencer that the question states! That he
with Mr. Spencer the absurdy Of the plan
aud the mpTobabity OF II, execution! No. certainly not
The Judge Advocate knows fhet no such reply will be
given, for the witness has already that far from
monrang with Mr. Spencer he assented 10 the plan and
nearly agreed share in lis execution An affirmative re-
ply is expected II is knowH that Will not be given
and consequently the question is rot put for information
The Judge Advocate knows that the only reply that can or
will be given direct negative; and what is 10 be the
rfa the GisCTcQu ii
o lie is already past redemption discrediied He has al
positive that lie held conversation with Mr.
Spencer the question calls him relate He has sworn
that believed the plan OF Mr. Spencer to be :erous and
It's execution merely possible, but probable. With
the discreci OF the witnessit the supposed inn
probability of the plan or OF his own story discedt him
Gu. Son is utterly and nanies;ly useless IL the OBJ
ect then Of the question is neither information nor mpeach
of the witness, what its true Character brief
argument designed 10 show that the plan OF the mutny
related By the witness, absurd and impractlcaoe
that either it seriously entertained by Mr. Spencer
was not communicated by him 10 Wales II IS rot a
question TO wtncs-the preext crunbes e touch
is nsidous and Irregular comment OF The iest
nony that The witness had before given. As argument
the question is exceedingly harmless but precedent
significant and dangerous Should II be said that Tie 90
the question is 10 ascertain whether the witness him
self believed that The execution OF the plan possible let
be dvssted OF form that conCeas It's purpose ana rem
the vebage and put the question in plain words" whether
he believed the plan could be executed, and why he oe
eved so " Ithe ohec, OF The question be legitimate THIS
is its honest form.
Fnay-Ir the Court receive the question in It's present
form, The desire, plainly expressed by ihe Judge Adyo
Gale the commencement OF this trial, OF being wholly re-
leased from the Rules of Evidence will be fully accomp
lshed There will be no limits his dlscre!ion-no cues
tcn tina, can be rejected as improper II portion OF
argument may be presented in question: why not an en-
tire argument, embracing an examaaon oi The wheie
case endeayorng 10 show that noue OF he persons accused
were guilty If guilty, that their execution was unne
cessay Nothing would be easy than TO suggest Tue
form OF question in which the whole argument might De
pora,ed. That such attempt VIII be mads mol
apprehended the deS would be too papabe-he at
tack upon the patience OF The Court too yolentout an
elaborate argument may be easily divided nio series OF
au insnnatons supposilons, and snrmlses 10 e form
of qaeSionsand thus us.dousy DISC usea may produc-
proper shape, il could never have effected. Two sucn
questions have aea.y been of ere How many more are
possession OF the JOdge Advocate or in process OF pre-
paraticn for future use, IS yet unknown
Ii will not be supposed sy angie member OF this Con!
,ha. The accused his counsei iat his conduct should
be shielded IRON The moss rg!d scrnny ne
has and dr nlnded-bnt he demands also that II BE
concucea in open, honorable a4d legal manner and u!
requiring this he ee that be sacs mol merely IN dsen
OF rights but OF the rights OF every brother ocer
who from m.slorune accident malice, may be placed iu
situation similar 10 his own JSo UUER.
Mr.. Duer then said he had one word TO add,
which he could not with propriety say in his writ
ten statement. 1t was this-,hat in future, when
ever any question was put which he conceived to
be improper, he should not state sny extended
grounds OF objection, either orally or in writing,
but should merely say, '' he objected the ques-
tion." and should leave it TO the good sense and
judgement OF the Csurt to decide on its admisi-
billy or inadmisibili.y, unless the Court should
otherwise request him TO make any statement of
reasons TO them.
The Judge Advocate then said he wished to ask
MIR. Duer whether, when he spoke of g other ques-
tions IN course of preparG'ioa,' he meant to in
.inua,e that he (rhe j. A was assisted by other
couesel.
Mr. Duer. l do not conceive that my express