The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-14


MATCHMAKING II. HIS language was clear and explicit,
Tree from difficulty or doubt and believe he was under
stood by your Honor-by all the counsel who were in
Court-by all the reporters it would appear from the
reports of his speech which published and therefore
understood by all the audience, expressing one plain
aud simple proposition as the foundation of his argument
IL however occurred to me- that after this argument OF
more than three hours Duration to which had listened
ana which was able learned ingenious, as all his argu
ments to which have had the pleasure of listening have
been that this position OF the counsel which he assumed
as the basis OF his whole argument was in itself SO
strange SO novel, nonstrous opposite to all
hitherto entertained by lawyers and judges relation to
the jurisdiction and power of courts Of the United States
and courts martial, that hardly possible, although
his language was piain that could have been his nten
on TO rest his case ON that proposition and hence was
led to make the inquiry. And here let whether
my Statement OF 1t does not correspond with the recoec
ton OF the court understood him asserting distinctly
that court martial has no jurisdiction to Try and punish
an officer or seanen belonging the navy of the United
States Tor any crime the nigh seas, which, it it
committed ny CITIZEN the Cir ut Court W. uld have
right try and to punish the ground that its urisdic
ton such officers and extensive with its
jurisdiction over citizens in private vessels asked the
counsel then at the conclusion OF his argument is this
your POSITIONS this the argument TO which am TO
ply, and if possible reutel 1t then probably occurred
him that his position would lead to very strange
consequences, and he then doubtless led into
train otrefectionthat il that position adopted there
hardly any jurisdiction that would be lett be
cised by court martial aud that the effects OF his
doctrine would be fatal and ruinous, not only
to the discipline but the very existence Of the navy
as II was possible TO imagine. And what was the
sut On the following day he abandoned the position
Of the former day, and gave new explain .tion of
and associate meant to maintain and Hne enths of
what he advanced on the preceding day became utterly
nappcable TO what he had stated the Court his
doctrine The effect and consequence OF the
which was thus made shall hereafter proceed
me now merely alude 10 the act that alter an elaborate
argument hours in which the counsel began by de-
fnng his positions he found necessary introduce
on the following day modification of his former propos
which in great measure rendered his arguments and
authorities napplicabe to the 1t impossible to de-
ny this dene hope of the argument
most incontestibly to prove that 1t wasso.
n. BUTLER-l
Mr.. DuER-Let me 60 on-you can explain at another
time.
Mr. BurLEa-My learned friend if it please the Court
interrupted several times in the of my argument
and did not object do not mean to follow his example,
and would not interrupt him now had he been present
in Court when made the additions my argument. We
all understood the observations made by my learned friend
that his present position unfavorableto the maintenance
ofcoolnes and composure and therefore shall not be d
verified from the simple object now have in view
TO- esns
tiona remarks then made, conceded admitted that
had varied or changed in one ot or title the original
ground on which placed myself If did vary, it is
for the court to show it. If did vary position why
certainly counsel right in showing it. But the learned
gen leman just in addressing himself this part of
the case assumed that had But the simple fact this
After had concluded my argument my learned friend in
the familiarity professional intercourse which has har
moniously subsisted between for than twenty
years, and which will trust, continue long
may i've asked me for some explanation of part of my
argument From my state OF exhaustion, and other cir
cumstances which occupied my attention, was unable
to give any other answer than simply to say that
that subject Now the learned counsel wishes be
understood and evidently wishes make that
that in consequence Of that suggestion reflected the
for whole night and then into Court Sa.
urday morning and made concession which disposed of
rey different AND Srouna Sow Se Court u pease
did not place myself different ground at all stated at
the outset and the report OF speech Of which did not
seea syllable until II pas IN print shows that stated that
did not claim that the Circuit Court any other Court
of the United States had jurisdiction since the OF 1900
offences hch were peculiar to the naval code
which grew out Of violations of dsciplne-of du'yof
fences in fact of every description growing out o. that
code.
MIR. DuxR-Is not the counsel going beyond the nero
prrpore OF cxg inna.ion1
Mr. BurLrs proceeded What said on Saturday came
directly within the principles laid down Friday
ing, and what then intended to offer although did not
state fully induced to do consequence of the
questions put to me by counsel and from wh saw that
he abored under erroneous impression But am not
at all to be understood varying single point of the posi-
ton assumed on Friday.
The Cousr think It is admissible in the course of the
argument for counsel to offer explanations in reference to
erroneous imputations But 10 the conclusions to
be drawn from statements way the other they
OF course not admissible.
Mr. BrrLsR-Certainy. It is only to elucida.e my for
mer views that trespass the time o.. the Court,
and to the misapprehenson which the
sci had fallen with respect to them affirm, and my
learned friend knows that would not In these circum.
stances affirm what is not truethat there nothing
presented in his question that was not familiar to nay
ciae and myself.
ments covering athey do such extensive ground
sci may be very likely to into collision, and 1t
during the progress Of the argument you will proceed
therefore, without further interruption, and let all
sary explanations be made Afterwards.
Mr.. DuER-I have only observ alton to make in re
gard to this explanation. must admit that his views
on Friday are precisely the same as those which he
pressed Saturday. and 1t merely follows that although
his views were clearly entertained by him. he only omit
ted express them. Because venture that the
explanation Of his doctrine Saturday, not
at all to have been anticipated by those who listened to
him Friday But to to the opening Of my learn
ed ren. Before he ed his argument an opinion
had apppared in all the the given nv
eminent urs to whose character and to whose services
and writings, no lawyer can ever permit himself 10
refer without some expression of his gratitude and
vcneration. That opn most explicit In denying
that this Court possessed the jurisdiction which was
claimed for it, and became Of the utmost importance to
the Counsel when speaking Of its probable and almost
certain influence on the mind of Honor and the
Jury to attempt to conrovert t. And hence he thought
necessary TO impute to this venerable this urst
whose experience whose learning, whose entire know
ledge OF subjects particularly connected with the Consti
tuition law of the U. States are admitted and esteemed
by sll-he found it necessary say impue him
OF the most extraordinary mistakes into which any law
endowed with airy Of his profession any
modcum of common sense, could ever have fallen. He
knew that 1t was necessary to something to get rid Of
the effect and operation of this opinion and hence his i'm.
putation Of this to Chancellor Kent what is the
alleged mistaken What is the error the omission of which
IS il seems to destroy the whole authority OF his opnonf
Why that Chancellor Kent supposed that some doubted
the jursdic ton Of that Courttat extern
ded to all crimes and offences committed in the army
snd navy when pecul to the naval CODE and de-
irving from it alone all their crminality And hence il
supposed that he meant to combat this doctrine and
10 tnat WAS at ths argument applied is that possible
ask your Honor, II possible. morally speaking that
Chancellor Kent could have attributed either to my learn
ed friends or to any of common this extraord
nary doctrine 7 Could Chancellor Kent have supposed
that who had read the crimes act Of $40 could
terrain such doctrne1 To think so would beto attr
butte TO that great jurist not mistake merely, hut
excusabe bunder. Let u.s. however, see what the doc
rne entertained by my learned friend is II is that
the Circuit Court of the United States has exclusive
risdction of all crimes committed in the navy those
which created by the naval code Mr. Duer then pro-
ceeded to contend that the doctrine be taken in its unl
mited would tend to the utter destruction of the
government of the navy and H. the other hand, its
extended II !oct inc which could
he applied to the present The large and liberal
sructon OF the doctrine he contended implied that the
very offence with which Commander Mckenzie was
charged within the limitation by which jurisdction
Of offences growing out Of the naval code
confined to naval courts martial Let us see how
far the opinions Of Chancellor Kent are borne out
IL. -. II