The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1846-09-09
Circuit Court.


The California Erpedition-In re- John Cook.-The
proceedings in this matter adjourned from Monday
to III O'Clock yesterday morning. The case having ex
cited good deal Of interest the avenues to tho Court
were from early hour filed with number oil persons
anxious to hear the proceedings
Colonel STEvESsoN not having made his appearance
until long after the hour Of adjournment some anxiety
was manifested and some were heard to say that tue
gallant Colonel would show the white feather and back
out About u O'Clock, Cook appea ed in custody OF an
Orderly SERGEANT and in about halt hour after the
al hs
Al haIfpast IL O'Clock the Court asked were the par
ties ready to proceed7
want the writ and returnthe return not sworn TO-
CouRT-The writ is not necessary-you can proceed
so nave hs o9ay Of .as %si
CouRr-Captain frisby, have you the writ-or what
have you done with it,
Capt FRIsBy-No, sir; left il in Court.
Counr-l do not know any thing about 1t Are you
ready to proceed, gentlemen
Genl. SUTHERLANp-We are il we had the writ.
CoURT-Proc eed sir. if YOU ready.
Genl. SUTsERtArp-We cannot 60 on without having
the writ before We issued the peoples writ and we
have right to have in Court together with the return
sworn to by Colonel Stevenson and your honor knows
you cannot adjudcste without it In fact you have no
should have III and that in all such the return
should be sworn to.
CovnrAll that is necessary is to have the body Of
AT this point of time Captain Frsby that he
had found the writ aud handed it up to the Court.
Court and reads-If your honor pleases we have
the writ and return and contend that the return is bad
because does show under what authority in what
capacity the prisoner is detained There is desgna
ton Of Colonel Stevenson in the return
CoURr-Look at the writ and you will there find de-
scrpon Of Colonel Stevenson taken from your re-
ution
Genl. sUrHERLAHp-we don't admit that to be true
venence Of having the writ truly and regularly served
but we do not acknowledge him as Colonel.
CouRr-A man who looks at his designation in your
petition and then at the writ and return and compares
them all together must be blind cat he does not
perceive the connection.
Genl SUTHERLAHD-I neither deaf or blind, and ]
don't perceive the connection.
Here General Sutherl read very voluminous pa
per denying the legality of the return The following
LIST That it was illegal. because the regiment was
organised by the Governor of the State Of New York.
and not the President of the United States.
I'd Because the Governor issued commissions without
authority.
Sd Because under the militia law the officers should
4th Tha, there is no law of the State of New York
authorsng the governor TO issue commissions to voun
teers for the United States
9th That the articles of war; and tho rules and regu
lsons of the army to the enlistment Of the and
the formation Of the regiment have not been complied
WITH that the regiment enormously organised, and
the oath required to be taken by Cook was not admin
istered by the person legally authorised to administer
the same.
9th That the enlistment is irregular, nasmuch it
does not appear whether the enstedto serve
as artillery cavalry rhemen any other specific
vice; neither does II appear for what term Of service
they have been enlisted.
And lastly that by various fraudulent representations
the said Cook was induced to enlist
After General SUTHERLAND had done reading the pa.
per, the court asked him if he that all the
matters put in issue by his pleading could be
SuTHERLAND-Your honor, We do; II follows as mat
ter of course.
PALMER, associate counsel of sutherland have a
paper containing the points upon which we rely will
hand them up, if the court please.
CoURr-lf you please, Mr. Palmer.
IN the Of . IN
which they rely, since the resignation OF CAPTAIN
Devere election in the regiment has taken place,
the sent to the governor, and the election has
been sanctioned.
Here Captain FRsRY offered in evidence copy of the
regiment was called into the United States service to
which attached the oath of allegiance taken by
Cook, and tho r,st Of the men, He then went on to
state that Colonel Bankhead read the muster roll at the
head of the regimentthat all the heard it, signed
It, and made no objection-that the matter was now in
the discretion of Colonel Bankhead the senior officer Of
Col Stevenson.
Gen. SUTHERLAND, starting up-I hold in my hand the
Union newspaper in which the Act Of Congress OF May
1885, first promulgated will read it, If your honor
eases TO show that not solitary section OF it has beer
complied with.
Ccuar.-Mr Sutherland have you any witness to ex
anime 2
sUTHERLAsp-I will have Col Stevenson examined.
CouRr-To what point, Mr.. sutherland
SUTHERLANp-We want to show that he has no c0mms
sion.
FRIsBY--Cook has been regularly mustered into the
service of the United States by Colonel Bankhead, and
that any rreguar,y in the original enlistment
Gen. SuTHrRLAsD-We want TO show that this man
who calls himself Colonel Stevenson committed gros.
fraud the Governor Of this State We can show that
Captain DeVere raised the company, and that the mer
elected Hanes and another lieutenant and sublieuen
and that induced DsVeIe to strike out the
in the election and insert the names Of
persons named Bonny and Wet in their places
and then had sent to the Governor as perfect return
elected Colonel.
Colonel STEVENSON then volunteered to be examined
Q--By what authority do you claim to hold Cooki
ABy authority of the comm ssion from the Governor
of the of York. and Of his being mustered into
the United States service by Colonel Bankhead my su
perior officer.
Q.-Have you got your commission with you
Al have, sir. Commission produced
Q.-Are you acquainted with Cook 2
A.-As much with any other man in the regiment.
Q.-What is he in the regiment
Al believe he Is sergeant On me ,h muster ss ron If ~
noncommissonsd officers, but understand he has bee
elected Sergeant
wish you hand up to the judge 1t will be safer
his custody than in yours.
SUTHEkLAND-I want to know from you, is that cop.
Of q letter from the Secretary of War to you1
SrEvEysoN-I don't know, have not read it.
SUTHERLAND.-I want you to read it,
STEvENsoNI don't want to read 1t; hand 1t up to tn
Judge, sir.
sSrHERLArpI want show by this letter that he ha
not according to the orders Of the letter.
will not the court enforce my legal right
CoURrIf he does not choose to do It, cannot enforc
surHERLArp-Did you take the rules and regulation
to Albany?
A-No SIT, I never had any thing to do with them.
Q-Dld you dlreCt j. u DeNete W ihsots 'ho A"ihos
and the others first and second Lieuen
ants in the place OF Haines
Al will state to the court that the rules &C. were 81
ven to General Norris that he might see that every
was called and to his after doing 80 they
were sent by him to the Governor.
Odd Captain Devere's company form part Of the
regiment
Ayes
SuTnsRLArp-Explain about person named Hsne
who had teen driven from the regiment
Col STsvENsoNT wish to state TO the court that re-
ceived der from Governor to receive no man
that held commission in any other company or regiment
in the State.
@ who 10 that man that swore In Cook7 Is his name
Hardy
mar sb letting it pass through your filthy lips;
H. General got into towering rage; both parties
inn d ely, got inside the railing and hustled round thu
beu h.
pro ensive that hos,ilities would ensue, the Judge
intel - l. and with his usual susvy OF manner Gained
tor lent. the belligerents
5. W sov, in continual ion--Y our ale cations ar,
as voia o. truth as you " eurself) are Of integrity.
Gen SUTHERLAND, turning round, and looking unu
terable things al the Colonel-DoDt look at me- sir.