Fourth Auditor's Office with my accounts. I made a payment of $3,000 in July or August, 1848, at La Paz, and shortly after-within a few months after-I paid the balance.

Question 15. Did you make these payments to the accused, personally, or to any other disbursing officer by his order? Answer. I made them to him, personally.

Question 16. Did you make the payments on board his ship, or where? Answer. I took the $3,000 on board the Ohio and delivered the three bags of hard dollars to the commodore in the cabin, as also the $76. The direct examination of the witness is here closed, and the accused stating that he has no question to put to him, his testimony is read over to him as herein before recorded, and is acknowledged by him to be correctly recorded.

And thereupon the court is adjourned until Monday morning, the 23d instant, at half-past 10 o'clock a. m.

DECEMBER 23, 1850-Half-past 10 o'clock a. m.

The court met pursuant to adjournment.

Present: the president, all the members, and the judge advocate.
The accused is in attendance.

The record of the proceedings on Saturday is read and approved.

And thereupon the accused, in pursuance of the arrangement made on Saturday, adduces the Hon. John Y. Mason, a witness on his part, who being duty sworn by the president of the court, is examined as follows:

Questions by the accused.

Question 1.-Please to state your official connexion at different periods with the administration of the general government during the war with Mexico, and after the peace with that power, till the end of Mr. Polk's administration?

Answer-When the war with Mexico commenced, in May, 1846, I was Attorney General. In the month of September, following, I was appointed Secretary of the Navy, and being confirmed by the Senate, served in that capacity until the end of President Polk's administration. During a portion of the time, the heads of the departments being absent from the seat of government, I performed the duties of Secretary of State and Secretary of War.

Question 2.-Please to state what were the general views and policy of the Navy Department, and of the administration, collectively, on the following points:

1st. As to the commander of the Pacific naval station keeping the military contribution money separated from the money subject to disbursement under legal appropriations, and applicable to such objects as the emergencies of the public service and the necessities of the service and of the community might demand in his sound discretion, subject to the ultimate approval of the department.

2d. Whether the protection and indemnity for losses of such Mexican citizens, not included in the ceded territory, as had come in danger of persecution on account of their adhesion to our side in the war, were not among the objects supposed to be within the limits of the commodore's discretion?

3d. Whether relief of the inhabitants of the sea-ports or other parts of Upper California from the embarrassments to trade and commerce arising from the want of a circulating medium or a legal currency would have been held within the scope of the policy which allowed of the exercise of a sound discretion in the commander as to the disposal of the military contribution money: for instance, would the investment of such money in gold dust, with the view and purpose of putting so much legal coin in circulation for the relief of such inhabitants, have been held an admissi ble or inadmissible exercise of such discretion?

And the question having been read, the judge advocate states to the court that in his opinion this question is objectionable, as it calls upon the witness to state the views and policy of the Navy Department, and of the administration with which he was connected, upon the matters to which it relates; which views and policy, it seems to the judge advocate, cannot be important in this trial, except so far as they were communicated to the accused for his guidance. The duties of the accused depend upon the general law, and the orders in force which affect the case. These, as also the views and policy of the Navy Department and the then admin. istration, so far as they can affect this case, are all in writing and may be produced. It is for the court to construe them, and not for the witness; and the court is to judge whether the case put was within the power of the accused or not. If any construction put by the Navy Department or the late administration upon the orders and despatches touching the case had been communicated to the accused, then it would be proper to be taken into the consideration of the court-otherwise not. Without any desire to interpose technical objections, the judge advocate feels bound to object to this question, as opening the door to a wide range of irrelevant matter. And, thereupon, the accused tenders to the court the following paper:

I consider the present examination of Judge Mason as in the nature of a deposition de bene esse, so far as this-that its application and its force will in some respects depend upon the further developments of the proofs in the future progress of the trial. I therefore hope the court will allow the questions and answers to be taken down, subject to future reception or rejection, according to the future aspects of the proofs and the questions of fact arising in the course of the trial.

"The evidence to which these questions look, is of course out of the usual track of evidence in courts of law. But the case itself, and the cir cumstances out of which it arises, are extraordinary, and out of the ordinary track of legal investigation.

"Considering the distance between the seat of government and the scene of the service in which the accused was employed, and the difficulties and delays of intercommunication, a very wide discretion in the naval commander necessarily resulted. The whole extent or the precise limits of that discretion were not and could not be defined beforehand. The suddenness and the unexpected nature of the emergencies out of which the necessity for the exercise of such discretion arose, forbade any systematic definition of it. The policy of the government, which led the commander to infer the large and undefined bounds of his discretion, might be manifested in a great diversity of ways besides orders directing or authorizing his acts before they were done, or written recognition or approvals afterwards.

"There were other officers, both naval and military, especially the commanders of our armies in Mexico, who were exercising a discretion still more broad and arbitrary, and without exception from the government, without any orders or other specific form of authority directing or recognising their acts. What had been done by the predecessors of the accused in the command of the same station without censure, was another species of implied recognition of the authority allowed by the accused himself, not as a direct sanction of the very acts, but as implying an authority of equal extent, and within the same reason.

"Whatever the course from which the accused reasoned himself into the conclusion that such or such an exercise of discretionary authority would be within the reason and policy of what the government held admissible, though never sanctioned, either by previous orders or subsequent recog nition, still one most important and interesting question lies behind. Right or wrong in his inferences and conclusions from the extraordinary circumstances under which he was called to act, the good faith, the sincerity and simplicity of purpose with which he acted, is an element of the highest import among the materials out of which a judicial opinion is to be formed. Then what more conclusive and satisfactory evidence of the purity of his motives, of the absence of all design to make forced and inadmissible constructions of his discretionary authority, than this: that the very government from which all his authority, express or implied, emanates, would have held the acts in question admissible and justifiable within their general views and policy, and would have authorized these acts had they been foreseen and anticipated?

"But I hold that where the lawfulness and innocence of an authority exercised by a military or naval officer cannot be brought to any known standard of law but the will and discretion of the executive department of the government, it is perfectly competent, under the strictest rules of evidence, to prove that the acts in question were within the scope of the views and policy of the government, and would have been authorized beforehand had the necessity for such acts been foreseen.

"The objections of the learned judge advocate seem to turn more upon the unimportance of the evidence than its positive illegality. I submit with much confidence to the judgment of this court, and to his own candor, when he comes to reconsider his objection, that the degree of importance attributable to evidence is wholly immaterial. If there be any possible view or aspect of the case wherein the evidence would be applicable, or have one jot of efficacy in weighing the minutest particle of proof, it is just as admissible as if it went the whole length and breadth of the issue.

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

And the same having been read, the court is cleared for deliberation. And the court, having duly deliberated upon the matter, and made up its decision, is again opened.

The accused is in attendance.

The judge advocate announces the decision of the court as follows: The court is of opinion that the question put to the witness is inadmissible.

The accused had the unquestionable right to prove what powers and

what discretion were confided to him in the command in question, or that an unlimited discretion was confided to him, and all the facts connected with his exercise of that discretion bearing upon the question of the bona fides of such exercise by him. The court will judge of the powers committed to the accused, so far as they are called in question upon these charges and specifications, upon the proper legal evidence of such powers; which evidence is not called for by the question now objected to. If the accused shall appear to have exceeded these powers, it will also judge of the intent with which he may have exceeded them, and will receive all proper evidence bearing upon the question of intent. But the interrogatory now offered does not call for any fact or matter bearing upon this question.

The accused states to the court that he has no further question to put to the witness, and that he may be discharged.

The testimony is here read over to him as recorded, and is acknowl edged to be correctly recorded.

And he is discharged.

Purser Hugh W. Greene, being duly sworn by the president of the court, is examined by the judge advocate as follows:

Question 1. What commission do you now hold, and did you hold in the year 1848, under the United States; and on what station and under what command were you doing duty in that year; and to what ship were you attached?

Answer. I was a purser in the navy, doing duty on board the United States ship Independence, in the Pacific, first under the command of Commodore Shubrick, and then under the command of Commodore Jones.

Question 2.-Had you at any time, and when, the charge of any por tion of the military contribution fund upon that station?

Answer. As collector at Mazatlan I collected the military contribution fund from some time in November, 1847, until the evacuation of the city on the 17th June, 1848.

Question 3.-Can you state what amount of military contributions came into your hands from the 11th day of November, 1847, to the 17th day of June, 1848, and how you disposed of the same?

Answer. There was a little rising of two hundred and fifty thousand dollars. The first payment I made was on the 30th March, 1848, by Commodore Shubrick's order, to William Speiden, disbursing officer, $63,252 99. The next, also under Commodore Shubrick's order, May 6, $53,158 82. The next, under Commodore Jones's authority or approval, (I do not know that I had any written authority for this particular payment, but I had his approval,) June 12, to William Speiden, disbursing officer, $62,588 20. The next, same date, by same authority, to Samuel Forrest, special agent, $15,058 50. The next, in July, to same, by authority of the same, $46,885 75. For incidental expenses of the office, $706 28. I retained, by the approval of Commodore Jones, $12,718 45, as com missions for the performance of my duties as collector of the port.

Question 4.-Did you render an account to the accused containing a charge of the sum of $12,718 45 for commissions as such compensation? If so, produce it.

Answer. I did so, and this is the account. It is signed by me, and approved by Commodore Jones, his signature being written upon it, as follows:

"No. 3.

"Statement showing the amount of the military contribution levied on imports and exports at the port of Mazatlan from the 11th day of November, 1847, to the 17th day of June, 1848, together with the expenses of collection, and the amount paid to Wm. Speiden, disbursing officer.

"Commander-in chief of the U. S. Naval Forces,

"Pacific Ocean.*

Question 5.-By whom and when were you detailed for the duty of collecting the military contribution fund at Mazatlan ?

Answer.-By Commodore Shubrick, the day after the port of Mazatlan was taken-I think on the 11th November, 1847. My commission was dated, I think, on that day.

Question 6.-Was the order and authority given you in writing? If so, produce it.

Answer. It was given to me in writing; but I have it not with me. It is at my residence, near Boston.

The accused assents that the witness may state the form and substance of the order or commission without its being produced, and the judge advocate puts the

Question 7.-State its form and substance, so far as you can from memory.

Answer. It is, I think, as follows: You are hereby appointed collector of the port of Mazatlan, and I herewith enclose, for your government, sev eral copies of the tariff prescribed by the government, or the executive, or words to that effect.

Question 8.-Was the paper, copies of which were enclosed, a printed paper; and are you able to say whether the printed document now shown to you is the same?

Answer. It was a printed paper, and I believe the paper now shown is the same.

The paper is annexed to the record, marked V.

Question 9.-Have you any knowledge of any investments made of any portion of the said military contribution fund in gold dust or uncoined gold by the accused, or by his order? If you have, state the particulars. Answer. I have not.

And the direct examination being closed, the witness is examined by the accused.