The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-12-20

T
Navy of the United States; and oppressively, and
| without warrant or authority of law, ordered and
caused the sentences of said courts to be executed
| and, by color of said usurped powers and unlawful
| procee dings, inflicted divers cruel punishments
| upon such officers and seamen, aud particularly
on the twentyihird day of the said month of Octo.
Der, eighteen hundred and forty-nine in the bay Of
san Francisco, in the waters of the United States
| inflicted and caused TO be inflicted, the punish
| ment of death upon two men, named John Black
| and Peter Black, and who were of the crew of the
| u. ;. schooner Ewing; the said punishment OF
| death having been adjudged and sentenced against
the said two men by a Court Martial ordered and
convened as aforesaid, but not having been con.
| frmed by the President OF the United States
| (Siened WILLIAM A. GRAHAM,
Secretary of the Nary.
| NAVY DEPARTMENT., November i, 1850.
REPLY OF COMMODORE JONES.
| Mr.. President and Gentlemen of the Court
desire that my plea OF the general issue be en-
tered the LIST, I'd, Sd and 4th charges, and the
several specifications thereof, and also to the 9th
charge, and the lst and ID specifications thereof,
byprotestaton, however, reserving all just excep-
tons TO the suficIency of the facts therein speci
| he'd, or that may be given in evidence under them
to affect me with any crime or offence within the
purvieu OF the naval articles OF war, or otherwise
coenlzabe by this court; and full liberty to justify
The innocence, both in act end intent, of all such
actings ard doings imputed TO me in said
| specifications, or as may be given in evidence I'M
der them.
|
desire TO be excused and dispensed from any other
plea or answer, but such consists of the follow
| ing exceptions 70 the same, to witt
except against the validity of the 3D. speciica-
ton 10 The 9th charge, and against the suficiency
of the matters and things therein charged and spe-
| cihsd, TO constitute any crime or offence within
the pervieu of the naval articles of war, or other
wise coQBizable by this court.
1st-Because all the acts and things therein
| charged and specified were in exact accordance
with law, and with my duty.
2d-Because they were acts and things OF inn
porous necessity, and indispensable to the pre-
seIvation Of the squadron under my command
3D. Because they were in pursuance and in
faithful execution Of the orders and instructions of
| the government.
4th-Because, If erred in my construction of
their sentences as specifed, still my acts in the
~ mic. 5, az alleged and specified, cons.eee no
crime or offence within the purvieu OF the naval
articles of war, or otherwise cognizable by this
court, but were offences against the law Of the
land, and exclusively cognizabte by the ordinary
courts Of criminal judicature.
In support Of which several grounds of this ex-
cepion, submit the following reasons, reserving
the right and praying to be allo wed, il needs be,
to maintain them further by argument and autho-
ry II the court shall entertain doubt that the said
"a specification TO the said Sd charge should be
set aside, quashed, and dismissed as null, and
void -
lst-That had authority of law.
The 35th article of the naval articles of war
empowers "the commander of a squadron, while
acting out of the United States ii cite the exact
words of the law to convene general courts
martial"
The 4lst article empowers him to confirm and
execute sentence Of death. or any other 4" il the
trial takes place out Of the United States" These
also, are the words Of the law.
BY the same articles, the converting of courts
and the execution Of sentences are not permitted
TO commanders OF squadrons within the United
States.
The qucstiop, therefore, is-Was the Pacific
Squadron, under my command on the coast Of
California, within or without the United States,
within the me aiming of the naval articles, at the
time of these transactions THAT 10 10 saw after the
treaty Of peace with Mexico, and before the laws
and judicial system of the United States had been
extended over the acquired territoyl
The words within, or out of the United States,
in the language of law like the naval articles OF
war, which construct and establish judicial sys.
TEN and machinery, create courts, and confer
their Jurisdiction, and apply these terms to define
the Jurisdiction, must be construed by the stern.
est and most imperative rules of legal construction
to use these words, "out Of the United States" az
meaning the extent to which its laws reach, and
have present and actual effect and operation
This is alike the language Of the law, by terms
strictly convertible, and It's most obvious and
necessary policy. These naval courts are created
and given jurisdiction without the United States,
because there Is there no other judicial system;
and they have the power TO try capital cases, and
adjudge the sentence of DEATH The Commander
is empowered to institute these courts, because
there is 10 higher officer, and other officer in
whom this high but necessary power is invested.
Within the United States, access can be had to he
President for the institution of the court, aud for
the revsiong OF its Judgments; and, within the
United States, those capital crimes which, with
out, are cognizable by courts martial, are withheld
from this Jurisdiction, and reserved for the ordinary
courts Of civil judicature; thus retaining the mill.
tary law in proper subsection to the CIVIL wherever
the latter prevails, and is provided with the neces-
ssry means for its own administration:
h. x.l ,tK.1 fl,f
Of California. But We were not, at the time OF
these transactions, in the actual exercise OF our
legal dominion over it, We had not extended
our laws over 1t, or established any judicial sys-
TEN. We had not repealed the laws existing there
or annulled the established system for the admi-
nistration and execution Of the old laws. All the
laws in existence at the time Of the transfer con-
tnued till repealed by the new sovereign; and
every court is forced 10 this conclusion or to sane
ton, by Judicial recognition, what no court of
law of any civilized country ever did sanction-a
state Of anarchy, to which no law, or system of
II appears quite unnece ssary under this head, to
press the argument, or to do more than state the
general principle. But ! am advised by counsel
learned IN the lave, that the principle here stated
is established (Which, indeed, was not encom-
passed with any well founded doubts before,) by
the Supreme Court of the United Saes, at it's last
session, in the decision of Page Fleming, which
grounded the doctrine, that ports held by the
United States were not within its jurisdiction and
the operation of its revenue laws, till the same
were duly extended over them by express provi.
sions
And I am further advised, that the argument
under this head Is not material because, n this |
ground Of exception to the charge were untenable,
instead Of being, as u is. surrounded with mpreg-
ma bic defences of law, reason, and authority, STILL
the other exceptions are sufficient and ncontro-
ver'ible.
2d-That they were acts Of necessity, essential |
to the preservation of the squadron.
II ever a naval force Of our country was in q |
situation which presented extraordinary induce |
ments TO the nfrscton OF the necessary aud whole
some laws which pre- serve and enforce naval disci-
plne-if ever a commander. entrusted with diff |
cult and hazardousservice required allthe strength
and support which the Law can give him, and by |
which only he can be fortified, and sustained. and
upheld in the discharge Of his duty to his country.
i was the Pacific squadron and its commander
turing the war and following the resce with Mex.