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



The Naval Court Martial,
PuiLDRLPHIA, July 81. 1854
The Court Natal reopened this morning. and
the number Of spectators usually present was much
increased and included several ladies interested
the result Of the trial friends Of the accused or
The counsel representing him. this day having bee,
set apart for delivering the argument for tue de
fence. 6ze Nf1 gtHs Ha saan h
The following Is the defence in fall as delivered
by the counsel, VIM IT. Crabbe, Esq
When the Judge Advocate, on Thursday last
called upon me to produce my witnesses, be asked
their production with en- sir Of confidence whic
was not without good foundation. Ny most iu.
portant witnesses are, as the prosecution well
knew, beyond the equator; and the Uaitod States
having hushanded their charges to pour the N upon
me after period Of over three years-a course
wholly repudiated and deseTvedly denounced Ia
other branches of the national servce-seect 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 the Inst Of 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 Whist is deaIer,
my reputation. In appearing to make my defence
TO the charges and specifications preferred
against me. / feel 1. 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
eyidence-and the evidence aionc-must be the
ground of your decision; and, to some extent. my
maxi defence at all Is more a compliance With
long settled usage than an sstempt, by any repte-
senatoos OF mine, to affect your view Of this case
and Of the evidence which the accusations against
me are cndeavored to be supported. hope, how
ever, TO be able IN some srt t, lieh'ea tha lab ORE
and econoniize the time OF the court by Analysing
the charges and specifications, and placing the evil
dence appropriate to each under its proper head;
thus reducing to order somewhat diaordery mass
of testimony, and dspospg in the process Of guam
tity of gossip and rubbish at present encumberlng
the record, and wholly unworthy the name Of owl
deBce.
y hen the case is thus stripped Of its Fictitious
surroundings and reduced to its natural order aud
proportions, hope that the court will find their
hbors In some degree facilitated.
In undertaking to anaIyze these charges, Rud
myself met on the tn eshl,old by considerations III.
ready presented 10 the court but which feel bound
again TO ofler-the more especially as l cen
now exhibit them in a greater detail and clear
Less than On ~. occasion heretofore afforded me.
believe that am being tried upon some speciaca'
tons which the cout have erred in entertaining;
which error has vitiated and nuied tho whole pro.
ceednss Of the court-at least 80 far as those spe il
dcations 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 tho
accused $50 deportcd himself in his intercourse
with the said diplomatic representatives a the time
ofcaviDg the said station, TO indicate aconteapt
for Them" is bad, as being wholly uncertain aud
vague. What do the authorities say TO vagucness
in specification Of contempt.-
(O'Brien, p. 23i.) "The fact or facts ought to
be distinctly specified or alleged, in such manner
that bother the prfeore. nor tie Court can nave
any difficulty in knowing what IL the precise object
Of inquiry ard investigation y There
sbonid DO no vagneness or uncertainty in spectt
catcp. The prisoner should be able so* know
precisely what it is that he Is to answer"
And the Same doctriec is laid down in De Hart
(292 ct seq. and H. Greenl. Ev. 47& 475 and note
% where the proper form OF specicat On for cou
tempt is given. Now. does this specification
satisfy these requirements Z Can it he called
specification at all? Can any one tell whs
Is intended by it?--whesaer acas or word
And If words, whether written or snokcn
Could tel from it what was to ausworl VIVA
was to be proved against me under t' Mr. Pendlo
ton seemed to think my letters were me ant; Mr
Schenck that the going away from Bucnos Ayre
was meant. Who shall cay what was meant? or wht
shall not say that this specification was not 1traI
from begirping TO en- la SOFT OF hook laid ont u
sc. what could be caughtf Again: Both these spc
c,iicsfiors arc double What do the books say aboa
-"The defendant must not be charged With havlni
committed two OF more offences In any one Nn
or specification of the Charge" (Maconub, D. &C.
32.)"Facts distinct in their nature ore not to b,
inciuded in one and the same specification
of charge, but must. be the subject Of a distinc
charge or specification" And the same is said II
len. 2S4. Are these specifications double? TINT
fourth Of charge first u.s. that FUSED language tend
Carroll TO DESERT That is one offence. "Andr says
the specification, latter the said Simonds aad Car
roll bad according deserted, cid not use the proper
means to have them apprehendcd." That Is another
offence. Now, tnrn, to the second OF the second
charge: That Captain Downing left his anchor age
and station near Bucnos Ayrcs and proceeded u
Rio Janciro with the said ship at time wtcu
he had reason to believe, and was informcj,
by diplomatic representatives Of tho United States
then ut Buenos that his presence with the sal
ship in tho vlsnty of BueDos yres was parti ,alar
ly necessary That is offencc,an If the Court
p.essc ii il the whole OF tho solitary specification
under the third charge; aad thea wo have the accn
sation Of contempt in addition. II tue specification
under charge third ID good, which it undoubtedl, is,
then this specification is plainly donbIc, and both
these specifications double just as plainly, and
in just, the same way as that one and arc two.
Il Is clear then, that these specifications arc inhc
rently and incuraby bad and defective; but the
icea seams TO be entertained that tho court has no
right on that account TO dismiss them. Precedent
and aufloritv are both opposed to such dottrine
For authority, O'Prien says, (p 235):" 1t results
that "a court martial may an; ought TO refuse to
try on accusation when the charge Is 90 vuguc aud
general that the plsoncr with the help Of the
specification, cannot discover the pseci-c crime
which lie Is alleged to have committed, and where
the charge s not distinct and 0rc.'
For precedent the Court will find il in the Of
Captain Trcnor stated. In Dc Hart, PIP. 2s9 80 !;
where the court dismissed the specification and
charge objected TO. Having laid these consdcra-
tons before the CONT propose to divide the char
| gcs and specifications INFO five groups;--
!. The transactions at Bnenos Ayree and In the