The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-08-01
THE Defence OF CAPTAIN D0wNrt;.
Is, &C., DO.


The Naval Court Martial.
PHILpRLPHIA, July 81, 1854
The Court Martial reopened this morning. and
the number Of spectators usually present was much
increased and included several ladies' interested in
the result Of the trial as friends o. tho accused or
The counsel representing him. this day having been
set apart for delivering the argument for the de.
fence. .a1sNff 4rd3 tst5a sJH
The following is the defence in full. as delivered
by the counsel, VIM. h. Crabbe, ESQ.,
When the Judge Advocate, on Thursday last,
called upon me to produce my witnesses, ne asked
their production with en- sir Of confidence whic !
was not without good foundation. Ny most i'm
portaDt witnesses are, as the prosecution well
knew, beyond the equator; and tho Uaitod States
having hushanded their charges to pour them upon
me after period Of over three years. course
wholly repudiated and deservedly denounced In
other branches Of the national servce-seIect their
own time to force ne 70 trial. and then ask me
for Witnesses who are in another Hemisphere.
have no witnesses. No one has been examined be-
fore this Court who was not on the list o! he prose
cutor; and on their own evidence come to meet
the accusations Of the United States--some of
which involve even my life. and what Is dearer,
my reputation. In appearing to make my defence
TO the charges and specifications preferred
against me, / feel II my duty to dis
avow in the FIRST place. any desire unne-
cessarily to prolong these already painfully
tedious proceedings. am aware that after all, tho
evidence-snd the evidence aionc-mnst be the
ground of your decision and, to some extent, my
maxi, defence at all Is more compliance With
long settled usage than an attempt. by any repte-
sentatioos of nins to affect your view of this case
and Of the evidence which the accusations against
me are endeavored to be supported. hope. how
ever, to be able in some srt &, lyhten thu Iabors
and econonlze the time Of the court by anal yzing
the charges and specifications, and placing the svi
dence appropriate to each under its proper head;
thus reducing to order somewhat diaorderly mass
oftestimony and dsposipg in the process Of guam
tity Of gossip and rubbish at present encumberlng
the record, and wholly unworthy the name of evil
dence.
V zen the case is thus stripped of its Fictitious
surroundings and reduced to its natural order aud
proportions, ! hope that the court viii find their
labors in some degree facilitated.
In undertaking to ansIyze these charges, I fiud
myself met On the tn. eshhold by considerations al
ready presented TO the court, but which feel bound
again to ofier-the moro especially as l can
now exhibit them in q greater detail and clear
Eess than 4py occasion heretofore afforded me-
believe. that am being tried upon some specifca
tons which the cou,t have erred in entertaining;
which error has vitiated and nuled tho whole pro-
eeedin.s Of the courtat least 30 far those spe
lcations are concerned. The specifications which
believe to be bad are the fourth specification Of the
first charge, aud the second Of the second charge.
To the second specification Of the second charge,
object that the allegation therein contained that the
accused $50 deportcd himself in his intercourse
with the said diplomatic representatives at the time
Of leaving the said station, as to indicate acontcpt
for them" is bad, as being wholly uncertain aud
vague. What do the authorities say as to vagucness
in specification Of contempts--
(O'Brien, p. 23i.) 'Thc fact or facts ought to
b distinctly specified or alleged, in such manner
any difficulty in knowing what is the precise object
Of inquiry ard investigation. = There
sbonid DO no vagnenees or uncertainty in speclt
casicD. The prisoner should be able to- know
precisely what it is that he il to answer"
And the Same doctrine is laid down in De Hart,
(292 ct seg. and III Grcen Ev. 47a, 475. and note
- where the proper form of q specifcat On for con
tempt is given. Now, does this specification
satisfy these requirements Can it be called
specification at all? Can any one tell what
Is intended by its--whesaer ACTS or word
And If words, whether written or spoken
Could tell from it what was to answer? What
was to be proved against me under IL? Mr. pendlc-
ton seemed to think my letters wcrc meant; air.
Schenck that the going away from Bucnos Ayres
was meant. Who shall say what was meant2 or who
shall not say that this specification was not 1trap
from begin Ling to en- Ia SOFT OF hook laid out To
SEE what could be caughtf Again: Both these spe.
ciiicstions d0ublA What do the books say about
dnplcity in Q specification? (De Hart. p. 2as.)
q The defendant must not be charged with having
committed two or more offences In any one .unt
or specification Of the charge" (Mlcomb, p. &c, s
32.)"Facts distinct in their nature ore not 10 be
included in one and the same specification
of charge, but must. be the subject Of distinct
C'Diicn, 234. Are these specifications double? Tho
fourth Of charge first is, that "used language tend
rg to encourage and incte the said Sim0ude and
Carroll to desert" That is one offence "Andr says
tie specification, latter the said Simonds and Car
roll bad ording deserted, cid not use the proper
means to have them apprehendcd.' That Is another
offence. Now, turn, to the second OF the second
charge: That Captain Downing "left his anchorage
aud station near Bucnos Ayrcs and PROCEEDED Is
Rio Janciro with the said ship at a time wtca
he had reason to believe, and was informcj,
by diplomatic representatives Of tho United States
then ut Buenos Ayres that his presence with the sai
ship in the ylsinity Of BueDos Ayres part ,nlar
~ nece ssafyn That is offence, and if thc Court
please, IL is the whole OF tho solitary specification
under the tliru chaIgei apd thca VIC have the aceu
satlon Of contempt in addition. RI tue specification
under change third is good, which it undoubtedl, s
then this specification is plainly double, and both
these specification double just as plainly, aud
in just tho same way, as that one and are two.
1t il clear, thcp that these specifications arc inhc-
rently and incurably bad and dcfectivc but tue
icca to be entertained that the court has no
right on that account to dismiss them. Precedent
and authority are both opposed to such doctrine.
For authority, OPrien says, (p $3.50 =" 1t results
that IA court marital may an. ought TO refuse to
try on accusation, when the charge Is 30 vuguc aud
general that the prisoner with the help OF tho
specification, cannot discover the preci-c crime
which lie Is alleged to have committed, and where
the charge is not distinct and one"
For precedent, the Court viii find IL in the case OF
Captain Trcnor, stated. in De Hart, PIP. 2s9-s ;
where the court dismissed the specification and
charge objected to. Having laid these considera-
tons before the court, propose to divide the char
9es and specifications INFO five groups:--
!. The TRANSACTIONS at Bnenos Ayree and in the
Rio De Ia Plata in juno and July 1853, incloding