the senior and most intelligent officers of the squadron, have declared in favor of the right; nevertheless, some of the younger officers deny it, and thereby produce doubts and dissatisfaction on the minds of others. The sooner that question can be settled by executive or legislative action, the better for the cause of law and order on this coast, and the discipline and harmony of the squadron."

The reply of the Navy Department was as follows:

"Com. THOS. AP C. JONES,

"NAVY DEPARTMENT, June 26, 1849.

"Commanding United States Squadron, Pacific:

"The question in relation to the right of the commander-in-chief of the United States squadron, in the Pacific, to convene courts martial, has been submitted to the Attorney General, whose opinion, it is hoped, will be received in season to be sent by Passed Midshipman Beale: if not, it will be forwarded by the first opportunity afterwards.

"I am, very respectfully, your obedient servant,

WM. BALLARD PRESTON."

Thus still leaving me, till a contrary opinion from the Attorney General, which never came, to pursue the course I had before pursued, with their concurrence and approbation, which I distinctly informed them to be in accordance with my own sense of duty, and my understanding of the law, and that it was my intention to continue so to act, until otherwise instructed. I never did receive any such instructions, and I therefore did continue so to act.

Now, if I erred as to the true law in this matter, on whom is the responsibility, either legal or moral? Is the legal responsibility with me, or with the government whose agent I was, with whose knowledge and consent I acted, and whose presumed and positive instructions I executed? As to the moral responsibility, let our relative situations be contrasted: I on a remote sea, engaged in an arduous service, encompassed with unexampled embarrassments and difficulties, far from home and all reliable sources of information and legal advice. The government, on the other hand, was surrounded with all the means and facilities for a sound, sure, and prompt judgment, which the laws and institutions of our country could afford. Can the government, even in the last strait or embarrassment of this matter, decline their advice and withhold their intentions, and throw upon me the responsibility of a decision and action? Can the government now, which allowed, approved, and instructed me in the first instance, and which, to the last, withheld from me any instructions of a contrary nature, hold me responsible, and pursue me criminally, and at the hazard of my character and even life, for what I did in their service, and with their consent, and by their instructions? Would not this be a perfidy without an example from the government of any civilized nation? Would not the epithets of "fraudulent," and "scandalous," and "against truth, and faith, and honor," so lavishly and unjustly ap plied to my conduct in the profuse and redundant rhetoric of these charges, much more familiarly characterize, in the judgments of all honor able men, the conduct of the government which would so entrap and be

tray a faithful servant? I am far from applying these epithets to this gov. ernment, or any of its officers. I am far from thinking them merited; nor would I seek to retort or reply to these charges otherwise than by a prompt and complete judicial vindication of my integrity and conduct. The misfortune of the department and one cause of the extraordinary injustice towards me in this matter, is the want of a proper official organization, from which I have had to report to no less than three heads of the Navy Department in a brief period of as many years. A secretary is not informed of the official action and decisions of his predecessor, and for my faithful execution of the orders of one secretary I am thrown into arrest, and sent to a court martial by his successor.

But of these things, and of others that are behind, I make no complaint. I might have expected that age, service, official rank, and personal character, would have shielded me from some of the imputations which have been levelled against me. I might have expected, looking back on my past life, to have stood before the Navy Department-and, if it should so happen, to come before a court martial of my peers-with some of the presumptions in favor of a good character and a fair life. I might have expected that in those parts of my official conduct, when a good motive appeared, or good motive might be imputed, I might have expected that even in an unsettled account current, an apparent error of a few dollars, to which my attention was never called until I saw it in one of the specifications just read, would pass for an error merely, and would neither be suspected nor imputed for a "fraud" and a "falsehood." But I make no complaint, and proceed to the 4th ground of exception, to wit:

That, if I erred in the law and my authority to convene courts martial and execute their sentences, it was not an offence of which this courtmartial can take jurisdiction.

It is obvious and unquestionable, from the naval articles herein before cited, that my lawful authority for these acts turns wholly on the fact whether I was acting within or out of the United States. Now if I was within the United States, and took the lives of these men without any authority of law for my proceedings, the act was murder. But of that crime this court has no jurisdiction; because, says the 21st article of war, "The crime of murder, when committed by any officer, seaman, or marine belonging to any public ship or vessel of the United States without the territorial jurisdiction of the same, may be punished with death by the sentence of a court-martial;" and no other article gives a court martial jurisdiction in murder within the United States, which this 21st article withholds and denies.

It is true, it is here laid as "oppression," but the specification makes it murder. Oppression is an undefined crime, recognised by the 3d navy article, styled oppression, but not defined in that article, or elsewhere in our written law. A court-martial is left to gather the definition from the usage of the sea service, as in all other offences not defined by the act or by any express law. But this power to ascertain the definition of the of fence, is merely a part of the judicial power of all courts to ascertain the meaning of the general and ambiguous terms of statutes; it is not a legislative power to fix an arbitrary meaning, to create a new meaning, or extend an old meaning; still less so to extend it as to invade and override the rest of the criminal law, and, under pretence of defining one crime, to confound all crimes. Because oppression is not defined, it does

not follow that other crimes are to lose their distinct and long-established and well settled definitions. Murder is still murder, and is not to be confounded with oppression or cruelty.

On all these grounds, I pray the court to dismiss and quash the 3 specification to the 5th charge, as null and void.

To all the other matters and charges, which affect my integrity and honor, I make no exception, and desire only a full and fair trial on the merits.

THOS. AP C. JONES,
Late Commander of the Pacific squadron.

WASHINGTON, December 17, 1850.

The original of which is hereto annexed, marked G.

And after the reading thereof, the court is cleared for deliberation.
And after some time spent in deliberation, the court is opened.
The accused appears in court.

The judge advocate, by direction of the court, announces to him that the court will further deliberate upon the contents of the said paper. And, thereupon, the court is adjourned until to-morrow morning at half past ten o'clock.

DECEMBER 18, 1850-Half-past 10 o'clock, a. m.

The court met pursuant to adjournment. Present: the president, and all the members, and the judge advocate.

The accused is in attendance.

The record of the proceedings on yesterday is read and approved. The accused tenders the following paper to the court, which is read by the judge advocate, to wit:

"Upon the other charges and specifications, to all of which I have herein before offered my plea of the general issue, I desire now to make a single observation. I am advised by counsel that the matters and things specified in them also, even if they be maintained by proofs, would constitute no crime or offence within the purview of the naval articles of war, or otherwise cognizable by this court; and I need no advice to assure me, that whether or no they constitute legally the offences under which they laid are competent to sustain the charges, still they never can be, in any essential particular, sustained by the proofs. But I thought it would ill become me, and ill accord with the obligations I owe to the honor of my profession, in any matter affecting my integrity, to plead technical objec tions, and quash and dismiss such charges, without a complete and searching inquiry into each and all of them. I have felt deeply wounded by these charges; I have felt that they are drawn in a manner unusual in our naval trials. There is a skilful mode of statement which carries all the force and power of argument. These charges are so drawn as to exhibit in a high degree this peculiar skill and art, and must operate greatly to my prejudice in advance of the proof. But I do not complain of this exertion of professional ability in the discharge of a professional duty. I only desire to go at once to the facts, to exhibit the entire truth, and to have a fair and full trial on the merits.

"THOS. AP C. JONES." The original of which paper is hereto annexed, marked K.

The court orders the same to be recorded. And thereupon the court is cleared for deliberation: and after fully considering the papers submitted by the accused on yesterday and to-day, the court is opened and the following decision is announced, the accused being in attendance, to wit: The third specification of the 5th charge assumnes, that at the times therein stated, the accused then being in command of the United States naval forces in the Pacific ocean, was not invested with the power conferred by the 35th and 41st sections of the act of Congress entitled "An act for the better government of the navy of the United States," approved 10th May, 1800.*

The specification does not seek to inquire into the facts upon which the proceedings therein referred to were based, but denies the authority of the accused in the premises, and charges him with the acts imputed to him as acts of oppression for which he had no warrant or authority of law.

The question, therefore, which this court is called upon to decide, is, whether the accused had such warrant and authority of law or not? Its solution must depend upon the true construction of the articles above cited.

The court is of opinion that, upon the true construction of those articles, the accused was invested with the power and authority of a "commander of a squadron while acting out of the United States," and might lawfully convene the courts and carry into execution the sentences referred to in this specification.

The court is further of opinion that the only facts specially charged in said specification amount to a charge of murder. The infliction of the punishment of death therein specified is charged to have been unlawful, because inflicted within the United States, without the authority of the President. But if it was so inflicted, then it is murder committed within the territorial jurisdiction of the United States, and is not cognizable by this court.

The court, therefore, without inquiring into the matters of fact alleged by way of justification, (which do not apply to an objection to the face of the charges, and if important would regularly be the subject of proof upon the trial,) allows the exception to the 3d specification of the 5th charge, and orders the same to be quashed.

The court remarks, that it finds nothing in the frame or language of the charges to justify the criticism which has been made upon them, especially as the language used is the language of the law. Offences can only be charged in appropriate language. But the court is to be influenced not by language of charges, but by the facts which may be proved in support of them.

The plea of not guilty is received and entered to the remaining charges and specifications.

And thereupon the judge advocate makes proclamation that the court is about to proceed to the trial of the accused upon the said charges and specifications, and admonishes all persons who are in attendance as witnesses to withdraw from the court, and to remain without the courtroom until they severally are required; and they withdrew accordingly. The accused tenders the following paper to the court, which is read by the judge advocate, to wit:

*23d April, 1800.-Navy Departmen

"Mr. Jos. A. Sherburne, late secretary to the accused, is in attendance as a witness. Mr. Sherburne is summoned on part of the defence only to attest documents, and not upon any matter contained in the charges. The accused desires that Mr. Sherburne may be allowed to attend in court to assist him in the defence.

"DECEMBER 18, 1850."

"THOMAS AP C. JONES, "Late commanding Pacific Squadron.

And no objection being made to the said request, it is ordered accordingly. Whereupon,

Edward D. Reynolds, a witness produced on the part of the prosecu tion, being duly sworn by the president of the court, is examined by the judge advocate as follows, to wit:

Examination of Edward D. Reynolds, a witness produced on the part of the prosecution.

Questions by the judge advocate:

Question 1.-Did you hold a commission under the United States in the month of October, 1848; if so, what commission?

Answer. I held the commission of a purser in the navy.

Question 2.-Upon what station were you doing duty at that time, and how long were you upon that duty?

Answer I was doing duty upon the Pacific station. I arrived there, I think, in August, 1847, and left there, I think. in November, 1849. Question 3.-Who was in command of the United States naval forces in the Pacific ocean on the 31st day of October, 1848?

Answer.-Commodore Jones.

Question 4.-Where were you at that time?

Answer. I think in Monterey.

Question 5.-Were you charged with the custody of any public moneys then and there; and if yea, what money, and what amount?

Answer. I was so charged; I had a large amount of public moneys in my charge; they were moneys appropriated for the naval service and military contributions.

Question 6.-What disposition did you make of the money of the mili tary contribution fund, and by whose order?

Answer. The last disposition I made of that fund was to pay California refugees in Lower California. By order of Commodore Jones I transferred a small amount of it to the New York volunteers.

Question 7.-Did you on the 31st day of October, 1848, pay over a large amount of that fund to any other officer? If so, state to whom, by whose order, and what amount.

Answer. I do not remember.

Question 8.-Did you about that time pay over any portion of that fund to Purser Wilson; and if so, what amount and by whose order? Answer. Some time in the early part of November in that year, I did so; I transferred, I think, 10,600 and odd dollars to Purser Wilson by order of Commodore Jones.

Question 9.-Where was the transfer made?
Answer. At Monterey.

Direct examination closed.