This specification is also multifarious in the direct and specific charges which it advances; charging, first, that he fraudulently converted the said gold (that is, the whole of the 983 ounces) purchased by Purser Wilson, to his own use; and, secondly, that he fraudulently sold and disposed of the same, and did thereby make great gains and profits, which he fraudulently converted to his own use.

Charge III, specification 1, differs little, if at all, in substance, from the third specification of the first charge. It superadds many strong epithets of aggravation, without any proportionate addition of intrinsic strength to the charge. It avers more succinctly, but substantially the same series and cumulation of fraudulent acts and intents, as of the essence of the charge. In so far as the specific form of accumulated and consecutive charges vary from or go beyond those of the aforesaid third specification, it does not seem to vary the requisites of proof demanded by the preceding charges: it concludes with an averment, that he received, to and for his own use, traffic, &c., the uncoined gold purchased by Purser Wilson, and afterwards disposed of the same for his own lucre and gain; thereby, and by the acts and order aforesaid, scandalously violating and abusing a public trust, prostituting his office and command to the purpose of private traffic and gain, giving an evil example, &c., &c.

From among these points of attack, I shall select such as appear to be most relied on by my accusers:

1st. Fraudulently withdrawing from the custody of Purser Reynolds, and transferring to that of Purser Wilson, the sum of ten thousand six hundred and forty-three dollars and nine cents, ($10,643 09,) with intent to convert the same to my own use.

In the course of my administration of the military contribution fund, I found it convenient occasionally to change the custody of it from the hands of one depositary to those of another. This very money had been transferred by my order from the custody of Purser Greene to that of Purser Forrest, from his to that of Purser Reynolds, and from his to that of Purser Wilson. My accusers seize on this last transfer, and load it with the heavy imputation of a fraudulent intent, prompting the transfer to consummate a predetermined scheme of embezzlement. Before this imputation can assume any show of plausibility, the authors of it ought at least to prove that the purser to whom I transferred the deposite was an apter instrument of fraud than he from whom I withdrew it. This, however, is not the only case occurring in these charges, wherein ny accusers, seeing an honest and an adequate motive lying on the surface, have chosen to grovel in mud and mire in search of a base one. The primary motive, however, for changing the depositary, though it be made by the terms of the charge the subject of a substantive averment, is of little consequence, if it be proved that I did in fact fraudulently convert the money to my own use.

2d. That charge is indeed roundly and bluntly asserted, and is again and again interwoven under various forms in the complicated texture of these charges.

Now that this charge should have emanated from the Navy Department, though its origin was in a very different direction, does seem strange, considering the clear evidence to the contrary existing in the archives of the department, and there a long time reposited. The amount of the funds originally in my hands, or subject to my exclusive control,

was about sixty-five thousand dollars ($65,000.) During the interval of time between June, 1848, and November, 1849, I rendered and despatched to the Navy Department, from my station on the Pacific, no less than nine statements and accounts reporting the state of the fund, and the suc cessive balances left in my hands after the several disbursements of it stated in my account. The last of these accounts (November 5, 1849) reduced the balance to little more than four thousand dollars, which I reported as being held subject to certain claims of refugees from Lower California. These accounts were accompanied or followed by vouchers of the verity of the disbursements therein stated; and to this day nothing has been hinted or whispered from the department by way of objection to any one of the items by which the original amount of sixty-five thousand dollars ($65,000) had been reduced to the balance stated.

Since my return from the Pacific I have rendered my final account current, reducing the balance to about four hundred dollars. The only exception taken to this account, and taken here in the course of this trial, was to my charge of arrears of pension, which was supposed to be barred by the operation and effect of a certain act of Congress, and by decisions of the treasury on the construction of the act. No other item has yet been contested, long as my accounts have lain in the department, without, it is true, having yet been taken up for final settlement. But that delay is strange and unaccountable, if they really suspected that so large a portion of the fund had been embezzled-a suspicion which they ought to have instantly proceeded either to dissipate or to verify by a strict settlement of the account-a process by which they could not have failed to detect and expose the embezzlement, had it been perpetrated. You, Mr. President, and gentlemen of the court, are no auditors of accounts. It is entirely out of your province to examine and decide questions of accounts between the government and individuals. You constitute a criminal tribunal, and the only claims of the government against individuals that you can take cognizance of are not pecuniary claims, but penal claims-claims for retribution in the form of punishment for crimes. It is not your province to decide whether a party be indebted to the United States, but whether he has wilfully committed a scandalous fraud on them.

But all these accounts, with the vouchers appended, are before you. They have been sent here from the department, and verified by one of its clerks. Now, Mr. President, and gentlemen of the court, I pray of you a minute examination of these documents, and see if you can find in them any chasm-any hole or corner-wherein this enormous embezzlement could possibly lurk unseen. If not there, where is it, and what is it but a phantom, without name, and without any other habitation but the heated brains and exasperated hearts of vindictive and unscrupulous prosecutors?

Passing from the simple and direct charge of the fraudulent conversion of the money to my own use, the same thing in effect is to be made out, it seems, argumentatively, from a very complex scheme of fraud, branching out into no less than six substantive frauds. Whether these are intended for alternate use, as capable of constituting, either separately or collectively, a crime of malversation, is not quite clear.

3d. The simple and the single fact upon which so much skill and labor has been bestowed to hammer it into the shape of a criminal charge is, that Purser Wilson by my order laid out the ten thousand six hundred

and forty-three dollars and nine cents ($10,643 09) received from Purser Reynolds in the purchase of uncoined gold, of which he purchased nine hundred and eighty-three and a quarter ounces, (983 oz.,) which he delivered on board my flag ship.

My motives and objects for so disposing of the surplus money of the contribution fund were simple as the act, and were avowed on the face of my written order to Mr. Wilson; they had reference to certain reasons of public expediency, and of relief to the embarrassment and distress of the inhabitants of California, both at the mines and in the cities. To this topic I shall have occasion to refer more particularly.

Among other impeachments of this transaction it is denounced as unlawful, as well as fraudulent.

Of my legal competency and authority to use the fund in that way, I have little to say. If I mistook my authority, and, acting honestly and sincerely for the best, transcended it, and thereby injured the public or individuals, I must submit to the civil remedies meet for the relief of the injury.

But I apprehend I cannot have brought myself in the danger of a criminal prosecution, either before the ordinary courts of law or before a court-martial, unless some very gross and scandalous violation of moral as well as of legal right appear.

It is matter of history and of general notoriety how new and anomalous were the powers devolving on our military and naval commanders in the Mexican war.

This contribution fund itself was the creature of an extraordinary power, then for the first time recognised in this country. So the administration of it by the military and naval commanders, into whose hands it fell, had no guidance of either rule or precedent-it was the exertion of a power, new-untried-anomalous.

I had already exercised a discretion in the disposal of this fund, far transcending in latitude that of exchanging it for gold dust, with a view to objects of public economy and commercial facility, connected with the condition of the currency.

I had instituted a board for liquidating the losses sustained by inhabitants of Lower California who had adhered to our interests during the war, and were obliged to fly for their lives when peace came to the generality; and these losses I had paid out of this military contribution fund: an act resting on my own judgment and discretion, and for which I stood responsible without any intermediate authority to shield me.

This act, when reported to the then administration, was not only ap proved but applauded; and I was encouraged to go on and exercise a sound and wholesome discretion in supplying remedies to such social evils as might result from the anomalous condition of the country.

I

All this is manifest in the documents before you; but the graver, might say the atrocious, features of the charge, are now to be developed. It is said, and distinctly charged, that my alleged motive of public utility and beneficence was but a hollow and deceitful pretext to cover fraudulent designs of speculation with the public money for my own profit.

But you have the testimony of no less than eight most respectable and intelligent witnesses, from the host that might have been summoned from California, who give you plain and circumstantial proof of the distress

and embarrassment of all descriptions of persons for want of an adequate supply of an available currency.

I need not now enter into the details-they are fresh in your recollection, and I appeal to you to say whether a stronger case of necessity for the exercise of the power I assumed can well be supposed.

Then here is presented one of the strongest cases that could have invited me to exercise the authority, and justified me upon the soundest principles that guide us to a public-spirited and beneficent exercise of discretionary authority.

Then a good and adequate motive stood out in open day light, and shone on, by the genial sun of California; yet did my accusers shut their eyes against the sun-lit vault of heaven, and dive into the sewers through which the vilest of human passions find their vent, to draw up from the lowest depths of its foulness and abomination a defiled and sordid motive. There lay before them, on the one hand, an honorable motive, on the other a base one; and it seems as if some sort of fatality or instinct carried them again to an election of the base.

All the facts and circumstances of fraud in the primary intent with which I made this disposal of the money-the corrupt design linked to the act-must, I should think, be given up without hesitation or qualifi cation. But, whatever the primary motive, they still insist and charge that I converted the money to my own use, by trading in the uncoined gold purchased with it. Yet-strange and mysterious conversion-there is not now, and cannot be traced back, the defalcation of a single dollar; the money is intact, and was always forthcoming in the form either of specie or of uncoined gold, to answer instantly any demand on the fund. There never was one instant of time when it has been shown, or can be shown, that the entire existing amount of the fund was not in hand, and ready for active use whensoever any legitimate occasion might arise for calling it into activity. There never was one instant of time when the entire amount of the fund was not at command in the form either of current money or of uncoined gold, or of some representative instantly convertible into money, like the bill of lading of the gold consigned to the treasurer of the mint, upon which I raised the money for Purser Price in August, 1849, except, perhaps, when the money was in transitu, to be converted into gold, or vice versa.

I am not now speaking in reference to the specifications which charge me with having fraudulently converted to my own use the identical gold purchased by Mr. Wilson. To that charge I shall have presently occa sion to speak; and I fear not to say in advance, that whatever obscurity may have been first thrown over it by the imperfect and confused recollection of one witness, and by the absence of the witnesses whose memories were less clouded, its refutation will be as clear as arithmetical demonstration, and that the instigators of it could never for a moment have been misled into any belief in it.

THOS. AP C. JONES,
Late Commanding the Pacific Squadron.

Mr. President and gentlemen: I regret to say that the notes of my counsel end here: his illness has prevented his continuing that exposition of this case which he had begun. I have, however, less reason to regret his inability to aid further in my defence, because the case is to my mind sufficiently developed in the evidence.

I rest my defence on the facts in proof before you, and in the general principles laid down in the opening remarks of my counsel, which carry with them a convincing, irrefutable force. I say, then, that you have proved before you the good, sufficient, patriotic motive with which I returned temporarily, to the relief of the distress of the people of California, a portion of the money I had by military authority levied from them; that my discretionary authority was, under the circumstances, equal for that proceeding as for levying money; that the government of the United States approved and applauded a much higher, broader exercise of discretion; that I secured the pecuniary interests of the United States, while relieving the distress of the people of California, by taking bullion "in lieu" of the coined money, and that from this transaction a profit resulted which was not of my contrivance.

If the question now before you was, whether this profit accrued to the United States or to me, I might answer that this court has to deal not with the pecuniary, but with the penal claims of the government against me. But that is not the question: the government have not, and do not demand these profits of me. They do not in any of their charges raise this question before you. They do not say that I have fraudulently withheld their gains and profits; but their charge is, that I used their money for my gain and profit. And in reply, I triumphantly show a good motive and a patriotic conduct. Whether the government would have taken the profits, and applauded me for the whole transaction, as in the previous case, I do not know.

THOS. AP C. JONES,

Late Commanding the Pacific Squadron.

And the same having been read, the court is cleared.

The president of the court submits certain communications addressed to him by Lieutenant Fabius Stanly; which are read.

The court orders the same to be appended to the record, together with a copy of a letter to Lieutenant Stanly touching the matter thereof; which the court directs the judge advocate to address to that officer.

All which is accordingly done; the said papers being marked "Lieutenant Stanly, January 29-A, B, and C."

The court then proceeded to the reading of the testimony, which was continued to the hour of adjournment.

The court is then opened; and adjourned until to-morrow morning, at 10 o'clock.

JANUARY 30, 1851-10 o'clock a. m.

The court met pursuant to adjournment.

Present: Captain Charles Stewart, U. S. N., president; Captain Lewis Warrington, U. S. N., Captain John Downes, U. S. N., Captain Henry E. Ballard, U. S. N., Captain William B. Shubrick, U. S. N., Captain Lawrence Kearny, U. S. N., Captain John D. Sloat, U. S. N., Captain Matthew C. Perry, U. S. N.; and J. M. Carlisle, esq., judge advocate. The record of the proceedings on yesterday was read and approved. The court is cleared.

The reading of the testimony is continued.

At 3 o'clock p. m. the court is opened, and is adjourned until to morrow morning, at 10 o'clock.