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Until Friday morning, March 16, at 10 o'clock a. m., was the time asked for by the accused, which was granted by the court; and which immediately after ordered an adjournment until that time, Friday, March 16, 10 o'clock a. in.
WILLIAM NORRIS, Judge Advocate.
United States Ship Ohio. I am under the necessity of challenging the legality of this court, and refer for the grounds of this challenge to De Hart, chap. 1, p. 8, marginal notes, on the appointing of courts-martial: again, same author, chap. 7, p. 138, marginal notes—the jurisdiction of the court.
Lieutenant FAB. STANLY.
U. S. Ship Ohio, San Francisco,
March 15, 1849.
The accused, Lieutenant Pabius Stauly, challenges Commander A. K. Long, as one of the court before which he is to be tried: 1st, on the ground of his being his commanding officer, (De Hart, p, 122, chap. 4;) 2d, he is a material witness, (De Hart, p. 123, chap. 7,) and a witness on the part of the prosecution; 3d, the accused is to be tried on a charge of personal disrespect to said Commander A. K. Long, on a complaint made by the said Commander A. K. Long; and it is, therefore, not probable, if not improbable, that the said Commander A. K. Long can be an impartial judge between the said Lieutenant Stanly and the United States.
Friday, March 16, 1849.
The court met pursuant to adjournment. Present: all the members, and the judge advocate.
The proceedings of yesterday were read, and it was ordered by the court that the omission to insert in the proceedings of yesterday the fact that the evidence given by both the witnesses examined had been read over to them and submitted for correction should be mentioned in the proceedings of this day.
Lieutenant Stanly (the accused) then desired that Lieutenant Buchanan, of the marines, might be recalled for examination. The court assented, and Lieutenant Buchanan testified as follows:
By the accused.—Did we go to the mission with the intention of returning in the sundown boat, or not?
Answer.— We went with the intention of returning in the sundown boat.
By the accused.—As you have been to th« mission you can state whether we could have gone there and back within the time we had on our hands by sunset, had we gone direct?
Answer.—We could have gone there and returned in the specified time.
By the accused.—Was Commander Long's tone, when he said "Put it in writing, sir," in the tone of a request or of an order?
Answer.—It was in the tone of an order.
Cross-examined by the court.
At what hour did you leave San Francisco, and what is the distance to the mission, and how long did you remain there?
Answer.—We left the ship at L p. m. The direct road is three miles. We remained there until the next morning, leaving before day light.
By the court.—At what hour did you arrive at the mission?
Answer.—About four o'clock in the afternoon: we walked there.
The prosecution and the defence having no further questions to ask the witness, his evidence was read over to him, and found correct.
The accused being next asked by the court whether or not he had any further evidence, replied that he had not. He was then called on for his defence, when he submitted to the court the paper hereunto appended, and marked "C."
The court was cleared for deliberation. A few moments after, the accused was called in, and he was asked by the court if he could not prepare his defence at an earlier period than that mentioned in paper marked "C" and hereunto appended. He replied that he thought he could "not. Whereupon the court stated that the request contained in paper marked "0" should be granted; and, accordingly, the court was adjourned until Saturday morning, March 17, 1849.
WILLIAM NORMS, Judge Advocate.
The accused respectfully asks the court for twenty-four hours longer, in order to prepare his defence. When he informed the court yesterday that he would be ready with it by this morning, he calculated upon the services of one of the crew of the Warren to assist him in transcribing it. On mentioning this circumstance on his return on board that ship, he was informed that an officer in the squadron had been brought before a counmartial for having employed one of the ship's company to copy for him an official document.
FAB. STANLY, Lieutenant U. S. N.
March 16, 1849.
Saturday, March 17, 1849.
The court met pursuant to adjournment; the president, all the members, and the judge advocate being present.
The proceedings of yesterday were read, and the accused, Lieutenant Fabius Stanly, was next called upon for his defence; when he read tf* paper hereto appended, and marked "defence," which the court received, and permitted to accompany the record.
The court was now cleared to deliberate upon the charges and specifi
cations; and after mature consideration, the following was the finding and sentence: Specification of the first charge proved, and guilty of the charge. Specification of the second charge proved, with the exception of the words, "in a disrespectful and contemptuous manner;" and not guilty of the charge.
The court thereupon sentences the accused to be publicly reprimanded by the commander-in-chief of the squadron, at such time, and on board of such ship of the squadron, and in the presence of such officers of the vessels present, as he may think proper.
C. K. STRIBLING, President.
Sentence approved: THOS. AP C. JONES,
Commander-in-chief Pacific Squadron.
To Captain C. K. Stribling, United States navy, St'c, from Commodore Thos. Ap C. Jones, expressing his opinion in relation to tlie legality of a naval general court martial, fyc.
Flag Ship Ohio,
Sir: I duly received your letter of this date, informing me that several of the officers now assembled on board the "Ohio" for the purpose of holding a naval general court-martial, have doubts as to the lawful authority of the commander-in-chief of this squadron to convene courtsmartial in this port, and that the members so detailed desire my views upon the subject.
The question is a momentous one, and is one upon which honest doubt may very well arise, and probably would arise in the mind of any not very well skilled either in the practice or theory of the law. It is a question which I have often heard discussed, and one which, in early life, I was called on to settle, in a situation somewhat analogous to that now existing in this squadron; therefore I feel less embarrassment in complying with your request.
By article 2'3d of the act for the better government of the navy, "approved 23d of April, l>00," general courts-martial may be convened as often as the President of the United States, the Secretary of the Navy, or the commander-in chief of the fleet, or the commander of a squadron while ailing out if the United States, shall deem it necessary, <fec.
The question is as to the meaning of the words, "while out of the United States.'''' Are these terms to be understood as applying to the utmost limits of territory claimed by the United States, or to so much only of that territory as is covered and protected by acts of Congress; or are they to be still more circumscribed by the strict and most probable meaning of the law, "out of the United States;^ in other words, beyond the judicial limits of any of the States, and, consequently, meaning any post or pla«e beyond the jurisdiction of any sovereign State or of her laws?
In answering this question, it may be well to take a retrospective view of the past, and to seek for the reasons which operated on the minds of the legislators who enacted the law in question. It will there be seen that the act for the better government of the navy was passed at a period of high party strife between the two great national parties-, federal and State-rights, which, from the adoption of the constitution to the present time, have watched each other with a jealous eye, and especially the Staterights party, whose constant and uncompromising opposition to federal encroachment in any shape or form, has never ceased to resist any and every attempt on the part of the general government to establish or exercise any right or privilege, civil or military, within the limits of their sovereignty, not clearly granted by the constitution; so that it is by no means improbable but that that never-dying jealousy, even yet predominant iD some quarters, may have insisted upon such a condition, especially as at that time the navy was not very popular with many of the States. We all well know that the extent of that jealousy even nowr with all the pop ularity the navy has subsequently earned for itself, is so predominant that the general government cannot locate a post or a navy yard within the jurisdiction of any of the States, without first obtaining a State grant or cession of such territory, within the limits of which, only, can naval or military law be enforced.
Such limitation, to the extent of jurisdiction, was not of much consequence in the year 1800: for then the United States, judicially speakiwg, owned no territory washed by the ocean. Every part of her Atlantic coast was at that time covered by the jurisdiction of several of the States of the Union; consequently, the United States, in 1800, and up to the purchase of Louisiana, was without ocean territory, in the constitutional meaning of the word territory, as defined by all jurists, in contradistinction of States of our Union. It would, therefore, be a violent presumption now to assume that Congress meant to legislate over what did not exist, and what no doubt most all who voted for or against the law in question doubted—the constitutionality of annexing foreign territory to the States of the Union; above all, it would be assuming a very high responsibility for officers of the navy to act upon the principle that the enactors of the law did not know what they were doing when they adopted the qualifi cation, "out of the United Stores." To sustain the doubts entertained by some officers, the language of the law should have been, ilu>hen adin<* beyond the territorial and judicial limits of the United States."
This view and sketch of the past is not a little strengthened by the feci that the act of 1799, for the better government of the navy, approved 2d of March of that year, contains no such restriction as the qualification, "acting out of the United States," which was first introduced in the act of Congress for the better government of the navy, approved 23d of April, 1800.
Thus it may be most reasonably inferred that one of the objects, if not the main one, designed by the qualification in question, was to avoid conflict between State authority and subordinate officers, and especially military officers of the federal or general government. If this construction be admitted, there can no longer be any difficulty in arriving at the true intent and meaning of the words "out of the United Siatts," which, according to my understanding, means any place or places where a squadron can float, on any sea or ocean beyond the jurisdiction of any of the States of the Union.
The territory of the United States, like the army and navy of the same, being under the exclusive jurisdiction of the general government, and all laws for their government being enacted by the Congress of the United States, there can be no jealousy nor conflict of jurisdiction or laws enacted by one and the same legislature; consequently, there can be no motive, founded in reason, for inhibiting the holding of naval courts martial in the territorial wateTS of the United States by the commander of the squadron, employed out of the United States, and more especially on territorial coasts, where no civil government or laws of Congress ever extend.*
It is a clear and vital military principle that two commanders in-chief of the same forces cannot exist at one and the same time; consequently, no two persons-, at the same time and place, can lawfully exercise the high power of convening such courts-martial; for, although the law confers on the Secretary of the Navy, as well as on the President, authority to convene naval general courts-martial in the United States, and we know that that power is constantly exercised by the Secretary, he does it in his ministerial capacity, under the implied instructions of the President.
Another, and a cogent reason why commanders of squadrons on the home stations, and naval shore stations, should have no authority to convene courts-martial, is found in the circumstance that, if such were general, and exercised by all, or even any such commanders, the head of the department would be thwarted in all his duties and details for service; never being able to know who was or was not on trial, or who employed on courts-martial; which might, without his knowledge or agency, be in session at every naval station in the United States at one and the same time.
I have some indistinct recollection of something as to naval jurisdiction having occurred at Pensacola some years back, while Commodore Stewart (perhaps) was in command of the home squadron, the particular merits of which I never knew; but one thing is quite clear—that the special act of Congress authorizing the employment of a home squadron did not confer on its commander any authority to hold courts-martial anywhere— neither in Pensacola, nor any other port or place on our then seaboard; because he could nowhere let go his anchor without being within the jurisdiction of one of the United States, as well as within the absolute and practical reach of the President and Secretary of the Navy, whose authority to convene courts within the United Slates overrides that of any commander of a squadron, whatever may be his rank.
Before any oflicer of the navy can acquire a legal right to convene naval courts-martial, he must be duly appointed to the command of a
'The President of the United Stales, in hi* menage to Congress, July 15, 1848, announcing the ratification of the treaty of peace win Mutco, holds the following language: "The war with Mexico having terminated, the power of th« Executive to establiah ir to continue temporary or civil governments over the territories which existed under the laws of nations, whilst they weir regarded as conquered provinces in our military occupation, lias ceased. By their cession to the United States, Mexico has no longer any power over them; and, until Congress *hall act, the inhabiiants will be without any organized government. Should they be left in this condition, confusion arid anurchy will be likely to prevail."