it might be considered an unfair attempt to procure a confession to be used as evidence against him. "I am, very respectfully, your obedient servant, "Commodore THOS. AP C. JONES, "WILL A. GRAHAM. "United States Navy, Washington." And thereupon the court is cleared for deliberation. And the court, having carefully considered the matter of the objection, and come to a decision thereupon, is again opened. The accused is in attendance. The judge advocate, by direction of the court, announces their decision as follows: The court has maturely deliberated upon the objection made by the accused, and has come to the following opinion: The despatch objected to is a communication by the accused to the Navy Department upon the very subject-matter of the despatch No. 34, which is the foundation of the 2d specification of the 3d charge. It enclosed to the department the complaint made by two of the officers alleged to have been referred to in that despatch, No. 34. The court has carefully considered its contents, and does not perceive how any portion of it can be omitted without involving the exclusion of evidence which seems to the court to be pertinent to the issue upon the said 2d specification of 3d charge. The alleged libel is a privileged communication. There is no presumption against it; but every presumption is in its favor It is, therefore, incumbent upon the prosecution to rebut such favorable presumption by proof of express malice. This may be done by proving falsehood, and the absence of probable cause. It may also be proved by giving in evidence any language of the accused, whether oral or written, showing ill will to the party charged to have been libelled, and indicative of the temper and disposition with which the alleged libel was written and published: and this, whether such language was used before or after the communication complained of. The court thinks this rule especially applicable to courts martial, where the object of the court is, with as little technicality as possible, to get at the substance of the matter; which, in the subject now under consideration, is, whether the accused was actuated by malice in the despatch complained of, or not? The despatch No. 52, with its enclosure, is therefore admitted in evidence. But it is to be understood that the court receives and will consider it solely upon the question of malice or no malice, in the alleged libel set forth in the specification referred to. If, upon the whole case, when the evidence for the defence shall have been received, the court should come to the conclusion that the accused is guilty of the said specification and charge, the court is aware that the matter of the said despatch, No. 52, cannot enter into their consideration in their further proceedings. And thereupon Samuel L. Harris, a witness for the prosecution, is recalled, and examined by the judge advocate as follows: Question.-Will you now produce and read to the court the despatch numbered 52, with its enclosures? Answer. I produce the original despatch, and read as follows: [No. 52.] FLAG-SHIP OHIO, BAY OF SAN FRANCISCO, SIR: The publication of a portion of my letter, No. 34, written from Monterey, has produced a state of things in this squadron much to be deplored, and has called forth the accompanying appeal from Lieutenants J. F. Green and J. B. Marchand, (marked A,) the character of which needs no comment from me. From the array of names appended to that instrument by way of evidence, it is clear that I cannot form a court-martial out here for the trial of any of a combination leagued and associated by the vain hope of transferring their own delinquency to the commander of the squadron. I shall, therefore, content myself by a simple narrative of the facts, upon which I based what I did say about Lieutenants Green and Marchand; and leave it to your judgment to deal with the parties as to you may seem right and proper. I am sorry to add that nothing has subsequently transpired to change the views 1 entertained of the lack of "esprit de corps" and patriotism intimated in the published extract of my letter No. 34, Lieutenants Green and Marchand never having offered to go one foot in pursuit of deserters; hence the apprehension of so few. On the other hand, I cannot speak in terms of too high praise of Commander Z. F. Johnston, waiting orders at San Francisco, who on two occasions promptly volunteered to accompany Lieutenant Pickering, of the St. Mary's, across the bay in pursuit of deserters; and by a series of extraordinary exertions succeeded in capturing four on one occasion, and nine on another, thereby setting an example to every other officer in the squadron, and by their prompt and decisive conduct, as well as the success of their enterprise, doing more to check desertion than all other means which have been employed. In consequence of the frequent and daring desertions during the first few days after the arrival of the squadron at Monterey, last October, it became necessary, in my judginent, to employ extraordinary measures and increased watchfulness to suppress the tendency by increasing the hazard of escape. Consequently, my special order No. 2, (marked B,) referring to my memorandum No. 7, (marked C,) was issued on the 18th or 19th of October. The following day, Commander Stribling, acting in the double capacity of captain of the Ohio and captain of the fleet, in the latter capacity informed me that he had received letters of remonstrance from two of the lieutenants of the Ohio, Green and Marchand, and from Lieutenant Craven, of the Dale, against the curtailment of liberty as required by said special order No. 2; but that the letters were of such a character it was not proper for me to see them, as I could not receive them without bringing their authors to court martial. He further said, that he had advised the gentlemen to withdraw their letters, and had volunteered to have a personal interview with me upon the subject; which he was then fulfilling. At this interview with me, Captain Stribling attempted to palliate the conduct of the three lieutenants upon the ground of professional pride, and suggested, or rather hinted, the idea of abandoning the coast altogether rather than meet the discontent of officers and the desertion of the men, if restrained in their liberty. This craven idea I then supposed originated with the lieutenants; but now I have abundant reason to know it to be the favorite project of Commander Stribling. Mortified, nay, deeply humiliated at finding that offcers of high professional standing in the navy could not see the necessity for the measures employed, but at the same time hoping that their misconstruction of my motives was the result purely of misconception, and not a shrinking from unpleasant duty, I did what I hardly ever did in my life before, made a full and free written explanation of the motives by which I was governed in issuing the order No. 2, and endeavored to show the necessity therefor. The paper alluded to was headed "confidential," and was addressed to the three lieutenants before named. It was read to, and sent through, Commander Stribling, as captain of the fleet, after he had expressed his unqualified approbation of its contents. It is here proper for me to state, that Commander Stribling was in fact the author of the restrictions, (order 2,) inasmuch as it was produced by his repeated complaints of want of officers for duty; frequently urging that it was impossible for officers, after being on shore gunning or hunting all day, to be in condition to keep watch at night; and that during the continuance of the court-martial, then in session, and the employment of officers surveying and trying to take care of the public stores on shore, he could not be responsible for the safe-keeping of the men, if the boats were allowed to be running on shore to carry officers on liberty. When the order was draughted, it was read to Commander Stribling, as was my habit before issuing all orders of special importance or public character; and that order, like all others, was sent to him for execution on board the Ohio, and for distribution among the other ships of the squadron, and he did not express dissent or seem to doubt its propriety and necessity until in the interview he sought on behalf of the lieutenants, as already alluded to. On the 22d of October, (I think it was the day after Mr. Craven's note of the 21st was dated,) Captain Stribling put that note and Lieutenant Craven's letter of the 19th (the same which he had returned to Lieutenant Craven) into my hands. Surprised at the presentation of these notes after the explanation I had given, I asked Commander Stribling if he was certain that that paper had reached its destination. He replied in the affirmative, as he had delivered the paper to one of the gentlemen himself, but from whom he had received no other reply. From time to time, I inquired of Commander Stribling if he had received any acknowledgment from Lieutenants Green and Marchand of my explanation; to which he always replied in the negative. As the court-martial, of which Lieutenant Craven was a member, drew towards its close, I communicated to Commander Rudd what I had before told Commander Stribling, that unless the complaining lieutenants made suitable apologies and withdrew their offensive letters before alluded to, I should bring them to a court martial. Both of those commanders viewed Lieutenant Craven's letters, and the whole transaction, in the same light that I did; and Coinmander Rudd advised Lieutenant Craven against writing or sending such letters. As soon as the court was dissolved at Monterey, I transferred Lieutenant Craven to the Warren, to be in place for trial when I could again convene a court. The absolute necessity of dispersing the squadron on public duty, as well as the diffi culty of forming a proper court of such officers as were then present, to try a lieutenant upon such charges, rendered it impracticable for me to hold another court until the squadron should be reinforced by the arrival of the St. Mary's and the return of the Preble; and, thus augmented, should re-assemble, in the latter part of February, at San Francisco. When the squadron did so assemble, (with the exception of the Preble,) I sent for Lieutenant Craven, and informed him for what purpose I had detached him from the Dale. He made such explanations and apologies as were satisfactory, and I restored him to the Dale; but at no time from the 20th of October to the present moment did Lieutenauts Green or Marchand condescend to notice my written confidential communication before alluded to. In addition to the foregoing facts, as regards Lieutenants Green and Marchand, many applications-verbal and written-for furloughs, leave of absence, and tenders of resignation, for the purpose of going to the mines, or engaging in other private matters, were made by commissioned and warrant officers. As to the faithful manner in which it is said Lieu tenants Green and Marchand have discharged their duty, neither Commander Stribling, nor his associate volunteer witnesses, have any right, in the relation in which they stand to the commander-in-chief of the squadron, to give ex parte testimony in the premises. All the array of certificates appended to the letters of Lieutenants Green and Marchand, addressed to the Hon. Secretary of the Navy, is but the expression of each writer's opinions in general terms. None of them say that Green and Marchand were not restless under the restrictions of special order No. 2, nor that they did not resist that order, by writing a letter or letters to the commander of the squadron, which, in the opinion of the captain of the fleet, through whom the letters were addressed, were of such character as the commander in-chief could not receive without bringing the said lieutenants to trial. As to all that is said in the appeal of Lieutenants Green and Mar chand about my preparations for an inland journey from Monterey, there is some truth, but much more perversion of facts and deliberate falsehood, as may be shown at a proper time and place. Suffice it here to say, I cer tainly did make ample preparation for a journey of one month to Suter's Fort, the headquarters of Colonel R. B. Mason, the governor and milita ry commandant of Upper California, with whom I had business of high public consideration connected with the arrival of the three hundred and fifty refugees brought from Lower California by my squadron, and to con cert measures for the relief of Oregon, and the maintenance of law and order in that Territory. It is also true that my party was arranged for about fifteen persons, comprising my staff, one surgeon, one lieutenant, and one midshipman, of the Ohio, with servants, guides, etc.; and even this force was deemed to be too weak to insure us against attack from banditti, with which the route was said to be infested. It is also true that I did intend to take with me $1,500 or $2,000, of which $1,200 was my own private funds, to be invested in gold-the public money to pay the way of the party; and, for the safekeeping of those funds, 1 had a wooden chest, iron bound, twenty four inches long, twelve inches deep, and ten inches wide, made for the purpose. There was also to go in that chest $1,000, private funds of Purser Forrest, and about $2,000, if it would contain as much-the latter sum being the aggregate of the amount made up by the ward-room officers of the Ohio, including Lieutenants Green and Marchand, and put in charge of Lieutenant McCormick, my flag lieutenant, to be laid out in gold. After the extraordinary desertion and escape of the eight men from the Ohio, with no voluntary effort being made to pursue them and bring them back, I deemed it inexpedient to leave the ship, and was compelled to send my secretary and another offi cer with despatches to Colonel Mason, inviting him to meet me at San Francisco, where we soon after met; and, by timely conference, arranged many matters of pressing importance to the public interest. The statement made by Lieutenants Green and Marchand, that the boat with which the eight men who rushed out of the lower deck ports on the evening of the 18th of October, and ran away with, had been on shore on my private business, is a premeditated perversion of facts. There was at the time, and had been for several days and nights, a lieutenant's guard of marines stationed on shore to guard the naval stores which were exposed to constant depredation. The threats of the disbanded volunteers to break open the stores and help themselves (and which was partially carried into effect) caused me to strengthen the guard by sending one or two officers on shore every evening to support the lieutenant in charge of the guard. The horses too, which we had obtained from the quartermaster by order of Colonel Mason, were kept in the yard of the naval storehouse-a part of which was occupied by the marine guard-and, to attend to the horses, two or three trusty men remained on shore every night; and by this means were they only secured, all those remaining at the quartermaster's stables having been stolen in a single night. As there was no public house or means of cooking for the officers on shore, they came on board every day to their meals; and, if they did not return to the shore in time for the boats to be hoisted accord ing to my orders, the fault was in the officer of the deck, who, on that occasion, was Lieutenant J. B. Marchand As to there being no extra guards set, or increased vigilance ordered, as asserted by Lieutenants Green and Marchand, they themselves furnish the falsity of the assertion, as may be seen by reference to my memoranda No. 5 and special order No. 2, the very grounds of complaint. I also assert the fact, that an extra marine sentinel was, during several nights, posted on this ship's tafrail (where none had ever before been posted since under my command) for the purpose of guarding against escape over the stern. I have no time, neither do I consider it necessary in this communication, strictly to analyze the false statements of the lieutenants and Commander Stribling's approbation so cheerfully expressed, further than to say that at no time has commander Stribling, nor any of the lieutenants of this ship, save only Lieutenants Armstrong and Emmons, manifested the slightest zeal or disposition to arrest desertion. Never have the lieutenants, with the two exceptions above made, volunteered to pursue deserters, however flagrant the act. Not even when, on the morn. ing of the 27th of March, ten men ran away with another boat from alongside this ship after reveille, and went to sea in the face of all hands, did Lieutenants Green or Marchand offer their services to follow in support of Lieutenant Armstrong, who had gone in pursuit, and was out of sight of the ship. The boat with which the ten men deserted was subsequently found a few days after by an army officer not three miles from the ship. I cannot close this "exposé," hurried as I am for time, without expressing the unpleasant suspicion that Commander Stribling, and his as. sociates against me, finding-as shown in the case of the Dale, which did not lose a single person by desertion, either at Monterey or this place, and in the comparatively few forming the aggregate of desertions from the squadron since its arrival on the coast of California, in October last |