defendant, by putting him to answer new matter of which the declaration gave him no notice; and serves as very legitimate and rational evidence of the malignity with which the defendant persevered in the same slander, and gave it superadded venom to harm the plaintiff.

"When we come to see how our own courts of law have received and treated this imported rule of evidence, there is still greater diversity and more uncertainty as to the terms and extent of the rule as admitted and modified by the law courts of the several States.

"According to some, the additional slander must not be of such a nature as that it would bear an action of itself, but some malignant or spiteful expressions: that it must have been uttered after the suit brought on the principal slander, so that the plaintiff could not have included it in that suit.

"The late Chief Justice Spencer, in delivering the judgment of the supreme court of New York, upon other points, takes occasion to express his unequivocal disapprobation of the rule admitting other and substantive slanders and libels to be given in evidence; but it was not necessary to decide the question in that case.

"Without troubling the court with a multiplicity of references to books, I will refer to a case decided by the supreme court of Massachusetts, in which the leading authorities, English and American, are reviewed, and in which the court adopts Mr. Phillips's version of the rule—that is, of the repetition of substantially the same slander—as the only tenable rational form of it. (Bodwell vs. Swann, 3 Pick., 376.)

"But after all, suppose it ever so well established as a rule in actions for slander libels in the courts of common law, that other libels or slanders not in the declaration may be given in evidence; what has it to do with trials in courts-manial for offences against the articles of war?

"Neither in England nor in America has it ever been extended to criminal prosecutions for libel.

"Mr. Roscoe, in his Treatise on Criminal Evidence, (page 606) can do no more than refer, not to a decision, but to a mere dictum, an off-hand opinion of a distinguished English judge that the same rule prevailed in criminal prosecutions. But no precedent, nor even any other dictum, is referred to.

"Not one of the text writers on martial law has referred to any snch rule as having any place in military jurisprudence, though several of them have given a sort of digest from the text-books and adjudications of the common-law courts, of all such rules of evidence as were at all applicable to the practice of courts-martial. Mr. Hough (chap. 23) has given a copious digest from the best common-law authorities of the rules of evidence, both in criminal and civil causes; among others, some decisions in cases of slander and libel, having a general application. But nowhere is there the slightest allusion to any such rule as the one now in question.

"The inconveniences and absurdities to which the rule would lead in the practice of courts-martial would be monstrous. All the English authorities upon which the extreme form of the rule rests, agree that the defendant may justify by giving the truth of the new matter in evidence. It necessarily follows, that here a new and collateral issue, leading far away from the true and original issue, is superinduced; for this at once admits the contestation of proofs and counter-proofs on both sides: after the accused shall have given evidence of the truth of the new libel er slander adduced against him, the prosecution may go on to give evidence of its falsehood.

"The judges who maintain the extreme rule say, all mischief to the defendant is avoided by instructing the jury that the damages are not to be increased in consequence of this new matter. Then they admit matter to inflame the minds of the jury, and expect that the damages will not be inflamed in proportion.

"As to the second question—the privileged character of the despatch— Commodore Jones's letter to the Secretary of the Navy claiming that privilege is annexed. The Secretary's answer is before the court. The privilege is claimed not solely on the ground of Secretary Southard's order, but upon general principles, as explained in Hough, S81, and 430439.


"Counsel for the Accused.

"thos. Ap C. Jones,

"Late commanding Pacific Squadron."

The paper annexed was then read as follows:

"sir: I beg leave, with the utmost deference and respect, to ask your serious attention to what I conceive to be an irregularity, injurious to myself individually, and of most pernicious tendency and consequence to the service, that has somehow occurred in your department; and which, I hope, when properly brought to your notice, may be corrected and redressed, so far as redress is yet in your power. 1 beg leave to refer you, sir, to the long standing order of the department, originally issued by Secretary Southard, in the form of a circular, calling for periodical reports from all commanders of ships, <fcc, of the conduct, good or bad, of every commissioned officer under their command.

"These reports have ever been held, and from their nature must necessarily be held, as of inviolable confidence between the reporting officer and the department; and access to thom has ever been denied, under every administration of the department, without exception, to officers having reason to suspect that they had been injuriously mentioned in such reports. There was an army regulation of similar import, though more in detail, calling for halfyearly confidential reports from the inspectors general. (See Army Regulations, September, 1816, p. 93, <fcc; Army Regulations, May, 1847, pp. 972, 973, with some modifications of the original order.) Though this army regulation expressly designates the reports thereby called for as 'confidential,' the reports made in obedience to the standing order of the Navy Department have never been considered or treated any less strictly confidential in their nature.

"It would be vain to expect the freedom and candor of remark that constitute the true value of these reports, and which it was the purpose of the standing order of the department to invite, if the officers who were required to put the department in possession of the undisguised results of their observations of the conduct of officers under their command were to be put to fending and proving every time their reports contained any remarks offensive to the irritable self love of individuals. The reports, if published, would, in innumerable cases, be so many fire brands of discord scattered ou the decks of our ships-of-war.

"It is not at all material that the writers of these reports have failed to superscribe them'confidential:' the nature of the reports, and the clear intent of the standing order which calls for them, necessarily impress that character on them.

"But in practice the confidential character of the correspondence of naval commanders with the department has been extended to communications altogether without the purview of the standing order which calls for reports upon the conduct of officers under their command. Even the denunciations of inferior officers against their superior and commanding officers have been put under the seal of inviolable confidence. A very recent case has occurred in your department, wherein a very respectable officer of the navy applied for a view of a very defamatory vituperation of his character and conduct, said to have been sent into the department by an officer lately under his command, and all access to the document was denied him. The superior officer who thus demanded and was refuged access to the defamatory communication of his inferior, stood in the relation of accuser to the author of that communication.*

"Yet, sir, by some very peculiar and exceptional, and to me wholly unaccountable, anomaly in the rules of conduct adopted and pursued by the person or persons in your department having custody of its correspondence, my official reports as commander-in chief of the Pacific squadron have been laid open to and put into the hands of a vindictive prosecution, conducted by some of the very officers of the squadron under ray command, and whose conduct was remarked on in my reports. The case is this:

"In the second specification of the third charge, I am charged with having made and transmitted to the Secretary of the Navy, in my report No. 34, a false, scandalous, and malicious report of the conduct of three lieutenants; and a literal extract of my report is set forth in the specification. I should here remark that the late Secretary of the Navy, Judge Mason, when he gave out that despatch for publication, had marked out, or directed to be marked out, all that twrtion of my report which had personal reference to certain officers of the squadron, as to be omitted in the printing. But by some oversight, either of the clerk who delivered the papers to the printer or of the printer himself, the Secretary's direction was not regarded; and the extract quoted in the specification was printed with the rest of my report. Of this accidental and unintentional publication of so much of my report as was of a confidential nature, I do not complain.

"But of this 1 do complain: that a subsequent report of mine, (No62,) dated 9th April. 1849—six months after the report upon which the second specification of the third charge is founded—has been laid open to, and put into the hands of, the vindictive prosecution, consisting of the lieutenants who preferred the charge founded on my former report. The principal topics treated in my second despatch are the conduct and complaints of the same lieutenants who supposed themselves aggrieved by my former report; but, in connexion with the same subject, my report contains remarks of a rather inculpatory tendency upon the conduct of other officers not named or alluded to in the censures of the three lieutenant and some of the officers of the squadron referred to in my former report. Without dwelling further upon the contents of this report, or its counei

"Referring to the cane of Commander Johnston and Lieutenant Stanly.

ion with the one on which alone the specification is founded, I must refer you to the paper itself, as the clearest demonstration how gratuitous and uncalled for is the now attempted and in part consummated publication of it. You will see at a glance how slight is its bearing upon the matter charged; and that the main object of the attempt to use it in this trial can be no other than to bring me into odium with other persons, of whose conduct, however, I had considerably modified my first opinion, in consequence of better information of their motives.

"But whatever the bearing of the paper on the case, I presume to think that its suppression and recall from any further and more diffusive publication is imperatively demanded by every principle of good faith that can he implicitly pledged by the government to individuals.

"I am advised by my counsel that the document in question is open to fatal objections to its admissibility as evidence, and that the court would probably throw it out upon the strength of those objections.

"But such rejection of it would be neither prevention nor redress of the mischief accruing to me from its publication. The production of the paper in open court, and the public discussion of the objections to it, would necessarily carry along a publication of its contents; and such a publication is the only inconvenience I have to apprehend from it. Let its contents be once published, and the parties are welcome to whatever advantage it can give them as evidence before the court: and 1 have little doubt my prosecutors, after having surreptitiously got the advantage they seek for from its publication, would care as little as I did for any advantage it would give them with the court as evidence.

"With the assurance that the irregular use now attempted to be made of my report has been attempted without your sanction, or from inadvertency to its claims to be held under the seal of inviolate confidence,

"I remain, sir, with high respect, your obedient servant,


"P. S.—There are certain portions of the report in question to the publication of which I have intimated my willingness to waive objection, namely: such portions as refer exclusively to the lieutenants named in the second specification of the third charge. I have marked out on the face of the papers such passages as I object to, as connecting, either by name or reference, other officers with them.

"T. AP C. J. "Hon. William. A Graham,

"Secretary of the Navy, Washington."

The judge advocate then reads to the court the following paper, being the answer of the Secretary of the Navy to the foregoing letter:


"Navy Department, December 28, 1850. "sir: The receipt of your letter of the 26th instant was acknowledged on yesterday, and a reply promised today. In that letter you allege that the usage of this department, and the confidence reposed in it by officers in communicating with it, have been violated in permitting a despatch, numbered 52, addressed by you to the Hon. J. Y. Mason, Secretary of the Navy, to be examined and offered as evidence before the court martial now in session for the trial of charges preferred against yon; and you ask that the head of the department will cause the document to be withheld from publication by directing it not to be exhibited in evidence.

"The ground of this application is stated to be an order originally issued by Mr. Secretary Southard, requiring the commanders of squadrons to make reports on the conduct of officers under their command, for the information of the department, which were to be received in confidence.

"I have caused the records of the department to be examined, and discover that such an order as that alleged did issue in 1825, and that a book was opened to register the information thus obtained: but no memorial of any report, made in obedience to it, is to be found in the department, except in that year. It seems, by the concurrence of those who have administered its affairs since, including Mr. Southard himself, to have become entirely obsolete.

"That order required detailed reports to be made semi-annually, on the first days of January and July, on the character, conduct, and attainments of officers.

"The despatches referred to, which I have read as requested by yon, do not purport to be made in pursuance of this order, nor do they correspond with it, in date or other circumstances. They can therefore, in my opinion, derive no claim to be treated as confidential under it

"Appreciating your remarks, however, on the general confidence implied in communications between the commanders of squadrons, I deem it proper to declare that I by no means consider the correspondence between them as open to general inspection. But privileged communications are not under all circumstances incapable of investigation in courts of justice; and when, as in this case, an offence against the naval laws is charged to have been committed in an official report, which has been published, I considered it proper to permit that report to go into the hands of the judge advocate for the preparation of the charges, and to be produced as evidence.

"And where a trial is pending on a charge thus made, and other communications on the same subject-matter contain evidence pertinent to the issue, I deem it due to a fair investigation that they shall not be withheld. Indeed, 1 presume that their production either in a military or civil court might be compelled. I am constrained, therefore, respectfully to decline to issue any order in the premises.

"Of the competency or effect of the evidence, I do not presume to speak. It is a question for the court alone. Of the propriety of omitting a part of the document, as suggested by you, I must also disclaim any power over the subject. The judge advocate only, as I presume, can arrange that.

"In support of your application you refer to a recent decision of this department in declining to exhibit to Commander Johnston a communication from Lieutenant Stanly. In that case Commander Johnston had lodged acomplaint against Lieutenant Stanly. This complaint was referred to Lieutenant Stanly for an explanation—a course not unfrequently adopted, for the purpose of determining whether a court martial is necessary. The reply of the latter was not exhibited to Commander Johnston—for the reasons, first, that it had been sought to determine the action of the department alone; and second, if unsatisfactory, and a court became necessary,

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