The New York herald., 1849-05-10
WILMINGTON. April 30. la4Q.
WAsHTyGToN, April 20, I8ay.
Dinsman cs. Captain Wilkes.
CIRCUIT CouRT-Before Judges Cranch Dunlap, and

u s. Exploring Expedition, for mprisonlng the plain.
TN In native prison (Which was 1t Is charged hlled
with hlthD at Oahu, fogging him, SC, was again
before the court this morning The entire ground OF
the action has alrca ady been stated in the Heraid
On Saturday Mr. May asked Lieutenant Walker, tho
witness on the stand, what the condition Of the
ship Peacock for subordination, &C.. at the time Of
and preceding the arrest and imprisonment Of the
parties Dinsman Babb and Pencil) as that condition
appeared by the log book Of that vessel
MIR; BRADLEY objected and argued against the ad-
missibility of such evidence.
Mr.. MAY replied for the plaintiff, and
Mr.. BRADLEY followed in support OF his objection.
show that if the defendant imprisoned the plaintiff on
shore because the imprisonment was more safe and
proper than in the squadron he was ustable unless
that public officer, invested with certain dscre-
tionary power, should never be made responsible when
and malice; and that, when acting within the limits
Of discretion, the same law which gives to him power
protects him; but he acts beyond his jurisdiction
when his acts attended by umsances
arising from i'll will vindictve feelings, and he
claim protection under color of his office Probable
and malice must concur To bring down the
question to simple rule Of evidence the issue is to
the excess in authority, accompanied by corrupt mo-
tives What tended to show 1t, Not that Captain
Wilkes did not exercise sound judgment, but, in the
manner and mode Of exercising that judgment the
party was subjected to suffer injury and that result
was from malicious motives. Mr.. Bradley quoted
largely from decisions of the British Courts, not of
the American for believe that this is the first
gng) to sustain the plea of justification Of Captain
Wlkes's conduct and to show that there
malice. The argument on Saturday, he said was to
show that there urgent necessity for imprison
ment shore.
Judge CRANcH--If there any doub. of safe y
the vessel, then on shore
MIR BRADLEY-lt was impossible for the jury to form
opinion as to discretion
Judge DuNLAP-I understood Mr. May to say that
there two prisons shore, better than the
other.
Mr. MAy-No; undertook to show that there was
another place Of confinement beside the shorc-that
the ship-the proper prison. although said that dis
crstion was to be exercised by proper motives.
Mr. BRADLEY resumed his argument, and in reply to
a remark by Judge Dunlap, said that he understood
MIR May to offer evidence to show that there pri
son on board the ship in which the complainant might
have been safely kept.
Mr. MAY observed that if he should show that there
was prison on board of the ship and the means Of
imprisonment-that being the usual and ordinary
place of continement-and If he should show that, in
stead OF there combining the complainants, the
mander sent them to prison In foreign jurisdiction,
arises what is the motive! If served good end II
is to be justified But the question is, what is the
tive Has he served his discretion honestly and vr-
tuousy! In order to ascertain whether this so,
he proposed to call witnesses II Captain Wilkes
could confne the complanants board the ship, and
did not, does he not show malice by confning them in
a place. The Supreme Court says that he
do this They sent the back TO this court, to bs
tried again. and it is for jury to inquire by what
motives the commander was actuated Mr. May want
ed TO show that there was bad motive because the
prison on board the ship convenient and
confortabe-if not on board Of ship, board of
another
Mr. BRADLEY contended that it was not material
whether the compainants confined on the ship
not How could the sci show that the confinement
was not as comfortable on land on the ship The
point was not as to the ship but to the safety of
those confined, in the discretion OF the commander
Unless the men suffer by It, the commander is
by the manner and motive With TO tSe be
subordination Of the ship Peacock, to which Lieut..
Bradley said that the log book did not show the whole
condition Of the ship; there entries there by
the commander or the fir first lieutenant 1t contain,
the deck, and more. 1t not. then, compc-
tent from this to form judgment of the discipline of
the crew at any particular time
Mr.. MAY and MIR. BRADLEY discussed at some length
the admissibiity of the log book evidence Finally
The Court decided that this could be far to
prove that it kept in conformity to law and the
regulations of the Navy Department
q. M. TorTEN was sworn, and testified that the log
MIR. BRApLEY-Was Captain Wilkes on board every
day
MIR. BHApLEy-Was he aboard more than once or
twice while lying at Honolulu Was he not engaged
at the Observatory?
cabin. don't know whether the commander was there
or not.
WIrSEss-That it might be inspected 1t was sent
every day; don't know whether the captain looked at
it; presume he saw 1t; don't know that ever
him look into 1t.
Mr.. MAY now proposed to show that on the 14th Of
November S40 two days prior to Pencil and Rabb being
sent cut of the ship and four five days prior Dns
being sent OUT five persons sent from the Por
to the Nincennes, under the immediate command
Of Captain Wilkes, and there imprisoned
Capt. WILKES (who sat by Mr.. Bradley said to his
counsel that the Porpose sailed on that day.
Mir. MAY overheard him, and complained that the
defendant should make such remark in the presence
OF the jury.
Mr. BRApLry obser, cd that if it interfercd with the
proceedings Of the court, it improper, and not
otherwise.
Mr. MAY proposed to show the facts he had just stat
MIR. BRADLEY objected, on the ground that it not
pertinent to show malice but the court could say
whether it was proof.
The court overruled the objection, and
Mr. MSy then read from the log book the following:
Saturday Nov. IA, the Vincennes received five pr-
soners from the Porpoise, and confined themn
MIR. MAY read from other portions Of the log oook,
that, the Goth of September, fifteen persons
the shore employed in cleaning the hold that
a man by the name of Peter Sweeney, was discharged
at the request of the crew. for stealing and the boat
which conveyed him to the shore was stern foremost;
and that man by the name of McAvoy hogged
eight ashes with the cats, by sentence Of court
tal He wished to show that, few days previous to
list and the reading Of the extracts demonstrate
that the ship in the highest state Of discipline and
that there necessity for condning Dnsman
Babb, and Pencil, in the prison shore
Lieut.. ALDEN, sworn, testified that he second
lieutenant of the ship Vinccnnes; knew Dinsman, who
sent to the ort the order given to Lieut. Carr
by Captain Wilkes whose manner excited, and he
manifested much passion Dinsman refused to do duty
and told If he did not do duty he would be sent to
the fort Dinsman for his discharge on the ground
that his time OUT the discipline of the ship
good; there was no insubordination among the men
charge and refused to do duty; nothing took place
there tending to subvert the order of the shp there
general order requiring the log book to be
to the captain every day; witness in the fort
to which Dnsman was sent; he only knew of it by
port the brig (or PRISON. of the Vncennes the
sarbeard side Of the main deck.
Cross-crdmined by Mr.. BRApLry.-Mr. Carr was, es-
sentiay, captain Of the ship while she lay in the har
Dor Of Honolulu; he remarked to witness, " Dinsman
has refused to do duty" Dnsman said his time
up and he wanted his discharge; he said this in a
quiet, respectful, orderly manner; this in
tion with other marines asking for their discharge;
DiDsman the last one; thinks that Lieut. Carr said
Dinsman also refuses to do duty, and wants to go
home; that Dinsman was the orderly Of Capt. Wilkes,
and was considered an interesting man" [Questions
were asked and answered, to the positions Of the
vessels Of the Exploring Expedition in the harbor Of
Honolulu the rise OF the tide. &c II seemed to be
the desire Of the commander to have Kanakas, ina
tivcs) because he going on dangerous service,
but the experiment did not go up well
MIR. BRADLEy-Was it easy to enlist a marine guard,
WIrNEss-No unless sailors shipped.
Mr.. BHAprEr-Sailors look marines half and
half
WITNEss-I have known men to 20 out as sailors on