[graphic][table][merged small]

Question 6.—Can you identify, among the papers now shown yofl, any others which came with despatch No. 56? If so, specify them.

Answer.—According to the best of my recollection there were vouchers accompanying the account which came in despatch No. 56. A portion of them I can identify, viz: those papers which are endorsed "duplicate" Nos. 11,12,13,14, and 15. I find also among the papers, vouchers Nos. 2, 3, 4, 5, and 6, referred to in the account, which I have no doubt also accompanied the despatch No. 56. These are all I can identify.

And the usual hour of adjournment having arrived, the testimony of the witness is read over to him as hereinbefore recorded, and is acknowledged to be correctly recorded.

And thereupon the court is adjourned Until to morrow morning at halt past 10 o'clock.

December 27, 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 of yesterday is read and approved.

The judge advocate states to the court that the corresponding clerk of the Navy Department is necessarily detained at the department with the book of despatches; and that until that branch of the evidence is concluded, he docs not propose to examine any other witness.

And thereupon the court is adjourned until to morrow morning at halfpast 10 o'clock.

December 28, 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 yesterday is read and approved.

At the suggestion of the accused, Purser Forrest is recalled for further cross-examination, and is cross examined by the accused as follows:

Question I—How many sets of pay rolls did you take of the payments you made to the Lower California refugees?


Question 2.—How did you dispose of the pay-rolls?

Answer.—I handed one copy to Commodore Jones, and kept two.

Question 3.—Have you any recollection of Commodore Jones requesting you to send one set of those pay-rolls to Washington, with your own returns sent home by the Lexington?

Answer.—1 do not recollect that he made the request.

Question 4.—Were not Commodore Jones's business engagements unusually heavy the two or three days the Lexington lay at Sansalito, previous to her sailing for home; and in addition to the usual press of business immediately preceding the departure of a ship of the squadron for home, were there not many merchants, ship-owners, and others on board pressing for coasting licenses, registers, and many bther things relating to commerce, navigation, and trade; and was not General Mason, civil and military governor of California, at or about the same time, hold* ing a conference with Commodore Jones in reference to the affairs of California?

Answer.—Commodore Jones appeared to be very much engaged at that time; many persons were visiting the ship, but I do not know their business, or particularly who they were. I think General Mason, who was civil and military governor of California, was on board about that time, bnt I do not know on what business.

Question 5.—At what time did information of the discovery of gold in large quantities, in Upper California, reach the Pacific squadron? Where was the flag-ship when the intelligence reached us? Was it before or after Hugh W. Greene made his last transfer of military contributions to you, as special agent, for thai fund f

Answer.—The information reached uis at La Paz, where the flag-ship then was; I think some time in the inomth of August, 1848, and after the transfer was made by Mr. Greene to me.

Question 6.—Would you, as a purser in the navy, acting under the act of Congress to regulate the pay of pursers and «ther officers of the navy, approved 26th August, 1842, and under the construction given thereto by the Fourth Auditor of the Treasury, have felt yourself authorized or at liberty to apply any funds appropriated by Congress, and for which you had receipted, holding yourself accountable to the Navy or Treasury Department, to such purposes as the paying and removal of the Lower California refugees after the war, or to supplying a circulating medium to the inhabitants of Upper California, by exchanging coin for gold dust?

Answer.—I would not have felt myself authorized.

Question 7.—Can you say positively that Commodore Jones did not* request you to send a set of pay-rolls home by the Lexington?

Answer.—I cannot say that he did not; I can only say that I have no recollection of it.

Question S.—Do you recollect whether the mail steamer Oregon, which sailed from San Fraucisco in the month of April, 1849, sailed promptly on the day first appointed for her departure?

Answer.—I am under an impression that there was a considerable delay in the sailing of the steamer, but do not particularly recollect.

Question 9.—At what plwes were the payments to California refugees made by you and by Purser Reynolds, respectively?

Answer.—Payments were made by me at La Paz and Monterey. I do not know, of my own knowledge, where Mr. Reynolds made his payments. At La Paz I paid the claimants, as the receipts will show, according to the instructions founded upon a classification of the claims, viz: Such as were to be paid in part, I so paid; and such as were to be paid in full, I paid in full. The defeired payments were made at Monterey. Some may have been absent even there; but the rolls which I have produced show all the particulars.

Question 10.—Look at your pay-roll No. 10, and say if the item 39, amounting to $141, be not the cluim which you referred to in your former ■examination as the one which Purser Reynolds told you had not been paid, and which you think you mentioned to Commodore Jones on your return from Mazatlan in February, 1849; or which of the items was it?

Answer.—I look at it upon the roll, but 1 remember nothing about the item No. 39, except that the person did not call upon me for the money. I do not know the name of the person to whom Mr. Reynolds alluded.

And, the accused having no further questions to put to the witness,his testimony, as hereinbefore recorded, is read over to him, and is acknowledged to be correctly recorded.

The judge advocate now renews the offer to read in evidence the despatch from the accused to the Secretary of the Navy No. 52, and dated April % 1849, with its enclosures.

The accused objects to the competency of the said despatch to be read in evidence against him upon these charges; and he asks time to prepare a paper setting forth the grounds of his objection.

And time is accordingly given until Monday morning.

And the court is adjourned until Monday morning, at half past 10 o'clock.

December 30, 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.

The accused submits the following paper to the court, which is read by his counsel:

"The questions now to be considered are: First. Whether the matter and substance of the despatch from Commodore Jones to the Secretary of the Navy (No. 52, dated 9th April, 1849,) be intrinsically admissible and competent evidence under the second specification of the third charge, supposing competerrt evidence of its contents were offered—that is, competent evidence of his having voluntarily uttered and published, either orally or in writing, the very same words. Second. If the uttering ani publishing of the same, written in any form, were competent to be given in evidence against him under the said charge and specification, then is not the official despatch itself a privileged communication, for which he cannot be held to answer?

"This despatch is offered as evidence under a charge of scandalous conduct, tending to the destruction of good morals, and a specification charging that the accused had uttered a deliberate falsehood in a former despatch to the Secretary of the Navy, (No. 34, dated 5th October, 184S,) in which he is supposed to have charged the three lieutenants therein named with being 'a little tainted with the gold mania;' and a literal extract of the despatch is given in the specification, as containing the ithck of the offensive matter complained of. That despatch has already been given in evidence, as the sole vehicle of the falsehood complained of.

"When that despatch became known in the squadron on the Pacific station, two of the three lieutenants named in the specification as aggrieved by the alleged falsehood wrote to the Secretary of the Navy a very defamatory denunciation against the commodore, in which they not only denounce the falsehood of his despatch in relation to them, but heap on himself all sorts of abuse and obloquy; and this they put into his hands, to be transmitted to the Secretary, as required by regulation. The despatch now in question is the one in which he transmitted this complaint, accompanied by many strictures on the conduct, not only of the lieutenants who had felt themselves aggrieved by the former despatch, but of other officers of the squadron.

"For the admissibility and competency of this paper as evidence, (though in no sort mentioned or alluded to in any charge or specification now in issue,) the authority of certain decisions of the English commonlaw courts, in the trials of actions for slander and libel, are understood to be relied on.

"These decisions are supposed to go the length of ruling that, in an action for a particular slander or libel, specially set out in the declaration as the sole cause of action, other slanders and libels, either prior or subsequent, may be given in evidence, by way of aggravating the defendant's malice in the libel sued for.

"By what analogy between a private action for slander or libel and a prosecution under the aforesaid naval article of war, a rule of evidence peculiar to the former, if ever so well established, is to be introduced into courts martial, so as to bring the accused into question for sayings or doings not specified, nor in any sort alluded to, in any charge against him, I cannot perceive with any clearness.

"But I have ever denied, and still deny, the authority of the rule, as applied to actions for slander or libel.

"The rule was never heard of in the English courts till long after the Revolution; and no English decisions instituting new rules of law since that period are held as authority in this country, any further than as they are seen to be legitimate deductions from the established principles of law and the best precedents.

"Even among the English judges, whose decisions are relied on as authority for the rule, there is the greatest diversity of opinion as to its terms and its extent. It never has been established by any decision of the higher courts. It rests entirely upon off-hand opinions of the judicatures called nisi prius courts, held by a single judge, for the trial of jury causes, and with little opportunity for deliberation and research. The authority of their decisions is held very light; and there were not even any regular reports of their decisions, till the spreading demand for all sorts of law literature, good and bad, brought them out, within the last fifty or sixty years.

"Several of the English judges have, in recent decisions, expressed strongly their disapprobation of the principle of the rule, while they conform to it; among them the late Sir J. Mansfield, chief justice of common pleas.

"As 1 have before remarked, there is great diversity among them as to the terms of the rule itself: some judges think that it goes the whole lencth of admitting other and substantive slanders or libels to inflame the malice of the one sued for; whilst others would limit it to repetition at different times, and on other occasions, of the slander, or of substantially the same slander as the one charged in the declaration. The learned and accurate Mr. Phillips, (whose critical reasons and conclusions are often quoted with respect both by the English and the American courts,) in his treatise on evidence, after a critical review of all the adjudged cases, comes to the conclusion that this last (the admission of proof that the defendant had at different times, and on other occasions besides those set out in the declaration, repeated and given publicity substantially to the same slander) is the true version of the rule as now understood in the English courts. So far the rule is unexceptionable and agreeable to the analogies and principles of the law; it produces no surprise upon the

« ForrigeFortsett »