BANCROFT 
 LIBRARY 
 
 o 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
DEFENCE 
 
 OF 
 
 LIEUT. COL. JCV FREMONT, 
 
 BEFORE THE 
 
 MILITARY COURT MARTIAL. 
 
 WASHINGTON, JANUARY, 1848. 
 
' 
 
 COL ] 
 
 EFEICE OF LT. COL. FREMONT, 
 
 BEFORE THE COURT MARTIAL, 
 
 JANUARY, 1848. 
 
 MR. PRESIDENT: The crimes with which I stand charged are, 
 1. MUTINY. 2. DISOBEDIENCE or ORDERS. 3. CONDUCT PREJUDI 
 CIAL TO GOOD ORDER AND DISCIPLINE. Either of these would be suf 
 ficiently grave in itself; united, they become an assemblage of 
 crimes probably never before presented against an American officer. 
 They descend from the top to the bottom of the military gradation 
 of crime; from that which is capital and infamous, to what involves 
 but little of disgrace or punishment; but from the whole of which 
 it becomes me to defend myself, and from each, in its order, accord 
 ing to the degree of its enormity. 
 
 The crime of mutiny stands at the head of military offences, and, 
 in this case, is presented with all the aggravations of which it is 
 susceptible; rank in the offender time of war in a foreign coun 
 try base and sordid motive wilful persistance. 
 
 It is the most dangerous of military crimes, and, therefore, the 
 most summarily and severely punished. Any officer present at a 
 mutiny "becomes the judge and punisher of the offence upon the 
 instant, and may kill the mutineer upon the spot, without trial or 
 warning. More than that, he becomes a great offender himself if he 
 does not do his utmost to suppress the mutiny, which he witnesses, 
 and may be punished with death, or such other punishment as a 
 court martial may award. It is the only case in which death may 
 be inflicted without trial; in all other cases, the supposed offender 
 is presumed to be innocent until he is convicted, and cannot be 
 punished until he has been tried. 
 
 Of this great crime, with all the aggravations of which it is sus 
 ceptible, I am charged to have been guilty, and continuously so, from 
 the 17th day of January, 1847, to the 9th day of May following, both 
 days inclusive; during all which time I was liable to have been 
 killed by any officer present who believed me guilty. I was not 
 killed; but am now here to be tried', and with the presumption of 
 guilt against me from the fact of being ordered to be tried. 
 
 The order to put an officer upon trial is a declaration, virtually 
 so, on the part of the high authority giving the order, of probable 
 guilt. It is equivalent to the "true bill" endorsed by the grand 
 jury on the bill of indictment; and, in this case, is equivalent to 
 
three such endorsements on three separate bills, for three several 
 crimes; for the order for my trial extends to the three different 
 charges upon which I am arraigned, and with the trial of the whole 
 of which this court is charged. 
 
 Mutiny is not defined in the United States rules and articles of 
 war, or in the British mutiny act from which they are copied, and 
 the decisions, as to what will constitute the crime, are very various 
 in both countries. I only refer to this want of definition of the 
 offence, and to these various decisions, to say that I have no objec 
 tion, in my own case, to have my conduct judged by any case that 
 "was ever decided to be mutiny, either in this country or in Great 
 Britain, strange and extraordinary as some of these cases may 
 appear. 
 
 The first act of this crime, alleged against me, is found in this 
 letter, set out as the basis of specification first infcharge first. 
 
 ClUDAD DE LOS ANGELES, 
 
 January 17, 1847. 
 
 SIR:* I have the honor to be in receipt of your favor of last night, 
 in which I am directed to suspend the execution -of orders, which, 
 in my capacity of military commandant of this territory, I had re 
 ceived from Commodore Stockton, governor and commander-in- 
 chief in California. I avail myself of an early hour this morning, 
 to make such a reply as the brief, time allowed for reflection will 
 enable me. 
 
 I found Commodore Stockton in possession of the country, ex 
 ercising the functions of military commandant and civil governor, 
 as early as July of last year; and. shortly thereafter I received from 
 him the commission of military commandant, the duties of which I 
 immediately entered upon, and have continued to exercise to the 
 present moment. , 
 
 I found also, on my arrival at this place some three or four days 
 since, Commodore Stockton still exercising the functions of civil 
 and military governor, with the same apparent deference to his rank 
 on the part of all officers (including yourself) as he maintained and 
 required when he assumed in July last. 
 
 I learned also, in conversation with you, that on the march from 
 San Diego, recently, to this place, you entered upon and discharged 
 duties, implying an acknowledgement on your part of supremacy to 
 Commodore Stockton. 
 
 I feel, therefore, with great deference to your professional and 
 personal character, constrained to say that, until you and Commo- 
 ,dore Stockton adjust between yourselves the questkm of rank, where 
 I respectfully think the difficulty belongs, I shall have to -report 
 and receive orders, as heretofore, from the commodore. 
 
 With considerations of high regard, I am, sir, your obedient ser 
 vant, 
 
 J. C. FREMONT, 
 
 Lieutenant Colonel U. S. Army, and Military 
 Commandant of the Territory of California. 
 
 Brig, Gen. S. W. KEARNY, 
 
 United States army. 
 
If this letter is mutiny, Mr. President, I shall now add another 
 aggravation to the five aggravations already attending it; I shall 
 justify it before this court! and now most respectfully declare that 
 I would write the same letter over again under the same circum 
 stances. But being prosecuted for it, I am bound to defefcd myself, 
 and proceed to do it. 
 
 In making this defence, I have some RIGHTS, which I propose to 
 use, and my authority for which will be found in Hough, p. 952, 
 t and which I now read, that the court 'may see the nature and extent 
 of the rights which I suppose to belong to me. 
 
 Major Hough says: 
 
 "The prisoner's defence ought to be confined to any statement of 
 his own case which he may think proper to offer to the court, in 
 contradiction to what has been stated by the prosecutor in his 
 opening address, and to observations upon evidence Which has been 
 given against nim, and to the offering any remarks upon any writ 
 ten evidence which may have been introduced in the course of that 
 evidence. He is likewise, at full liberty to remark upon the nature 
 of the evidence given on the part of the prosecution, and to show, 
 if he can, where there is any contradictory evidence, and to im 
 pugn the credit of the witnesses that have been examined; to ob 
 serve upon the non-production of witnesses, who could have bet 
 ter informed the court; to urge the improbability that he should 
 have acted in the manner imputed to him; 'and to urge all these 
 circumstances to the kind consideration of the court; and if "there 
 have been any hostile feelings expressed by the prosecutor towards 
 him, in remarking upon such a circumstance, or as to the motives 
 of the prosecutor, it shall be done in a manner that shall not be 
 disrespectful to the court." 
 
 These are my rights before this court, and all of which I shall 
 have occasion to exercise, except in one single particular, that of 
 recommending my defence to the kind consideration of the court. 
 I will substitute just for kind, as being more suitable to the char 
 acter of a judicial tribunal, impersonated with bandaged eyes, to 
 imply a disregard to persons as more suitable to my own case, 
 which requires justice and not kindness, and more agreeable to my 
 self-respect, which will be best satisfied with a defence on the basis 
 of rigid right. With this exception, and with that reserve of de 
 corum which it needed no book injunction to impose upon me, I 
 shall proceed to state my defence, and to do it with the care and 
 precision which the gravity of the accusation demands. 
 
 And first, my own statement: 
 
 The two superior officers in California, with whom the.'difficulties 
 began, (Commodore Stockton and General Kearny,) have each had 
 the benefit of stating his own case before this court) showing under 
 what authority they went and acted, what they did, and how they 
 became involved with one another, and how I became involved in 
 their contest. 
 
 An incident, and a subordinate in this contest, where it originated, 
 and turned up as principal figure in it here for criminal prosecution, 
 J am happy to find that my rights, in one respect, are at least equal 
 
to theirs that of stating my own case as fully as they stated theirs, 
 and showing how r I became principal in a contest which was theirs 
 before I heard of it, or came near them; and which, as suggested 
 heretofore, ought to have been settled between themselves, or by 
 the government, whose authority they both bore. A subordinate 
 in rank, as in the contest, long and 'secretly majrked out for prose 
 cution by the commanding general, assailed in newspaper publica 
 tions when three thousand miles distant, and standing for more than 
 two months before this court to hear all that could be sworn against 
 iny private honor as well as against my official conduct, I come at 
 last to the right to speak for myself. 
 
 'In using this privilege, I have to ask of this court to believe that 
 the preservation of a commission is no object of my d.efence. It 
 came to me, as did those which preceeded it, without asking, either 
 by myself, or by any friend in my behalf. I endeavored to resign 
 it in California, through General Kearny,in March last, (not know 
 ing of his design to arrest me,) when it was less injurious to me 
 than it is at present. Such as it now is, it would not be worth one 
 moment's defence before this court. But I have a name which was 
 without a blemish before I received that commission; and that name 
 it is my intention to defend. 
 
 -In the winter of 1845-6, I approached the settled parts of Upper 
 California with a party of sixty-two men and about two hundred 
 horses, in my third expedition of discovery and topographical sur 
 vey in the remote regions of the great west. 
 
 I was then brevet captain in the corps of topographical engineers, 
 and had no rank in the army, nor did an officer or soldier of the 
 United States army accompany me.; 
 
 The object of the expedition, like that of the two previous orWs, 
 was wholly of a scientific character, without the least view to mil 
 itary operations, and with the determination to avoid them, as be 
 ing not only unauthorized by the government, but detrimental or 
 fatal to the pursuit in which I was engaged. The men with me were 
 citizens, and some Delaware Indians, all employed by myself on 
 wages, and solely intended for protection against satages, and to 
 procure subsistence in the wilderness, and often desert country, 
 through which I had to pass. 
 
 I had left the United States in May, 1845 a year before the war 
 with Mexico broke out; but I was aware of the actual state of af 
 fairs between the two countries, and being 'determined to give no 
 cause of offence to the Mexican authorities in California, I left my 
 command at the distance of about two hundred miles from Monte 
 rey and proceeded, almost alone, to the nearest military station, 
 that of New Helvetia, (or Suter's fort) and obtained , a passport 
 (which I now have) for myself and 'attendants to proceed to Mon 
 terey, the residence of the commandant general or deputy governor, 
 General Castro. 
 
 Arrived at Monterey, I called uon the commandant and other 
 authorities, in company with the United States consul, and with ail 
 the formalties usual on such occasions, and was' civilly received. 
 I explained to General Castro the object of my coming into Cali 
 fornia, and my desire to obtain permission to winter in the valley 
 
of the San Joaquim, for refreshment and reptose, where there was 
 plenty of game for the men and grass for the horses, and no inhab 
 itants to be molested by our presence. Leave was granted, ami 
 also leave to continue my explorations south to the region of the 
 Rio Colorado and of the Rio Gila. 
 
 In the last days of February, I commenced the march south, 
 crossing into the valley of the Salinas, or Buenaventura, and soon 
 received a notification to depart, with information that Gen. Castro 
 was assembling troops with a view to attack us, under the pretext 
 that I had come to California to excite the American settlers to re 
 volt. The information of this design was authentic, and with a 
 view to be in a condition to repel a superior force, provided with 
 cannon, I took a position on the Sierra, called the Hawk's Peak, 
 entrenched it, raised the flag of the United States, and awaited the 
 approach of the assailants. 
 
 At the distance of four miles we could see them, from the Sierra', 
 assembling men and hauling out cannon; but they did not approach 
 nearer ; and after remaining in the position from the 7th to the 
 10th of March, and seeing that we were not to be attacked in it, 
 an-d determined not to compromise the government of the United 
 States, or the American settlers, who were ready to join me at all 
 hazards, I quit the position, gave up all thoughts of prosecuting 
 my researches in that direction, and turned north towards Oregon. 
 
 Disappointed in the favorite design, of examining the southern 
 parts of the Mta California, and the valley of Rio Colorado and 
 Gila, I formed another design which I hoped would be of some 
 service to my country, that of exploring a route to the Wah-lah- 
 math settlement* in Oregon, by the Tlamath lakes; and thence to 
 return to the United States by a high northein route, exploring the 
 country in that direction. In pursuance of this plan, and before 
 the middle of May, we had reached the northern shore of the Great 
 Tlamath lake, within the limits of Oregon, when we found our fur 
 ther progress in that direction obstructed by impassable snowy 
 mountains and hostile Indians, of the formidable Tlamath tribes, 
 who had killed or wounded four of our men, and left us no repose 
 either upon the march of in the camp. 
 
 We were now at the north end of the Greater Tlamath lake, in 
 the territory of Oregon, when on the morning of the 9th I was 
 surprised to find ride up to our camp, two men one turned out to 
 be Samuel Neal, formerly of my. topographical party, and his com 
 panion, who quickly informed me that a United States officer was 
 on my trail, with despatches for me, but he doubted whether he 
 would ever reach me; that he and his companion had only escaped 
 the Indians by the goodness of their horses; and that he had left 
 the officer, with three~men, two days behind. 
 
 Upon the spot I took nine men, four of them Delaware Indians, 
 coasted the western shore of the lake for sixty miles, and met the 
 party. 
 
 The officer was Lieutenant Gillespie. He brought me a letter of 
 introduction from the Secretary of State, (Mr. Buchanan,) and let 
 ters and papers from Senator Benton,and his family. The letter 
 from the Secretary imported- nothing beyond ,the introduction, and 
 
was directed to me in my private or citizen capacity. The outside 
 envelope of a packet from Senator Benton was directed ; n the same 
 way, and one of the letters from him, while apparently of mere 
 friendship and family details, contained passages enigmatical and 
 obscure, but which I ^tudied out, and made the meaning to be that 
 I was required\by the government to find out any foreign schemes 
 in relation to the Californias, and to counteract them. Lieutenant 
 Gillespie was bearer of despatches to the. United States consul at 
 Monterey, and \ras directed to find me wherever I might be; and 
 he had, in fact, travelled above six hundred miles from Monterey,, 
 and through great dangers, to reach me. 
 
 He had crossed the continent through the heart of Mexico, from 
 Vera Cruz to Mazatlan, and the danger of his letters falling into 
 the hands of the Mexican government had induced the precautions 
 to conceal their meaning. The arrival of this officer, his letter of 
 introduction, some things which he told me, and the letter from 
 Senator Benton, had a decided influence on my ne^ct movement. 
 
 Three men were killed in our camp by the Indians the night 
 Lieutenant Gillespie delivered his letters. We returned to the 
 camp at the north end of the lake, pursued and waylaid, but killing 
 two of the assailants without loss. ' 
 
 I determined to return to the unsettled parts of the Sacramento, 
 and did so. ' Soon the" state of things in California was made known 
 to me; General Castro approaching with troops; the Indians of 
 California excited against us; the settlers in danger as well as our 
 selves, and all looking to me for help. 
 
 We made common cause, and I fletermined to seek safety, both 
 for them and ourselves; not merely in the defeat of Castro, but in 
 the total overthrow of Mexican authority in California, and the es 
 tablishment of an independent government in that extensive pro 
 vince. In concert, and in co-operation with the American settlers, 
 and in the brief space of about thirty days, all was accomplished 
 north of the Bay of San Francisco, and independence declared on 
 the 5th day of July. This was done at Sonoma, where the Ameri 
 can settlers had assembled. I was called, by my position, and by 
 the general voice, to the chief direction of affairs, and on the 
 next day, at the head of 160 mounted riflemen, set out to find 
 General Castro. He was then at Santa Clara, on the south side of 
 the bay, in an entrenched camp, with 400 men and some pieces of 
 artillery. We had to make a circuit round the head of the bay, 
 and on the 10th day of July, when near Suter's fort, we received 
 the joyful^ intelligence that Commodore Sloat was at Monterey; 
 had taken it on the 7th, and that war existed between the United 
 States and Mexico. Instantly we pulled down the flag of inde 
 pendence, and ran up that of the United States. 
 
 A despatch from Commodore Sloat. requested my co-operation, 
 and I repaired with my command (160 mounted rifles) to Monterey. 
 I was ready to co-operate with him, but his health requiring him 
 to return to the United States, he relinquished the command to 
 Commodore Stockton. He (Commodore tockton) determined to 
 prosecute hostilities to the fwll conquest of the country, and asked 
 not co-operation, but service under him. He made this proposal 
 
in writing to Lieutenant Gillespie and myself. We agreed to it, 
 and so did our men, the latter, as Commodore Stockton so em 
 phatically testified before 'this court, refusing to stickle about 
 terms and pay, giving their services first, and trusting their govern 
 ment, far distant as it was, to do them justice. 
 
 Commodore Stockton has proved the terms of our engagement 
 with him, and that we became a part of the naval forces under his 
 command. I went under him with pleasure. I was glad to be re 
 lieved from the responsibilities of my position. At the same time 
 I had no doubt but that the riflemen with me would have chased 
 Castro, with his troops, out of the country, and that the Califor- 
 nian population might be conciliated. If Commodore Stockton had 
 not taken the command and lead in the war, I should have contin 
 ued the work as I had begun it, with the men of my topographical 
 party, and the American settlers, and had not, and have not, a 
 doubt of our success. 
 
 We (Lieutenant Gillispie and myself) joined Commodore Stock 
 ton for the public good, and with some sacrifice of our independent 
 positions. Neither of us could have 'been commanded by him, ex 
 cept upon our own agreement. I belonged to the army, and was 
 at the head of the popular movement in California. The common 
 voice of the people called me to the head of affairs^ and I was 
 obeyed with zeal and alacrity. Lieutenant Gillespie was of the 
 marines, and was, besides, on special duty, by orders of the Presi 
 dent, and no officer of any rank could interfere with him. We 
 might have continued our independent position, and carried on the 
 war by land. We judged it best for the United States to relinquish 
 that independence, take^ervice under Commodore Stockton, obey 
 him; and we did so. His testimony is complete on this point. We 
 became part of the naval forces. We went under,the command of 
 the naval commander on that station; and it was to the naval com 
 manders there that the President had specially assigned the con 
 quest of California. The California battalion of mounted riflemen 
 was then organized, Commodore Stockton appointing all the officers, 
 myself being appointed major, and Lieutenant Gillespie captain. 
 From that time we were part of the naval forces for the conquest 
 of the country. 
 
 I omit details of naval or military events, in order to come to the 
 point which concerns me. 
 
 On the 13th of August, 1846, Commodore Stockton, as conqueror, 
 took possession of the City of the Angels, the seat of the governors 
 general of California. On the 17th he issued a proclamation, or 
 decree, as such, for the notification and government of the inhabi 
 tants, followed by many others in the same character, and for the 
 better government of the conquered country. 
 
 On the 28th of August, he communicated all these acts to the 
 government at home, stating in the communication that, when he 
 should leave California, he should appoint Major Fremont governor, 
 and Captain Gillespie secretary. Four days before that time, 
 namely, on the 24th of August, and in anticipation of his own 
 speedy return to the sea, for the protection of American commerce 
 and other objects, he appointed me military commandant of the 
 
8 
 
 territory, and charged me with enlisting a sufficient force to garri 
 son the* country, and to watch the Indians and other enemies. In 
 that letter is this paragraph: a I propose, before I leave the terri 
 tory, to appoint you to be governor, and Captain Gillespie to be sec 
 retary j and to appoint also the council of state, and all the neces 
 sary officers. You will, therefore, proceed to do all you can to fur 
 ther my views and intentions thus frankly manifested. Supposing 
 that by the 2bth of October you will have accomplished your part of 
 these preparations, I will meet you at San Francisco on that day, 
 and place you as governor of California." 
 
 A copy of this letter, with a copy of all the rest of the acts of 
 Commodore Stockton, as governor and commander-in-chief in Cali 
 fornia, was sent to the Navy Department, at the time, (August, 
 1846,) by Mr. Christopher Carson, who was met by General Kearney, 
 below Santa Fe, on the Rio Grande, and turned back, the despatches 
 Ipeingsent on by Mr. Fitzpatrick, and were communicated to Congress 
 with the annual message of the President of December, 1846, and 
 are printed in the documents attached to the message, from page 
 668 to 675, inclusively. TThe Presidential message itself, and the 
 reports of the Secretaries of War and Navy, thus referred to these 
 acts of Commodore Stockton: 
 
 Extract from the Presidents annual message, December, 1846. 
 
 Our squadron in the Pacific, with the co-operation of a gallant 
 officer of the army, and a small force hastily collected in that dis 
 tant country, have acquired bloodless possession of the Californias^ 
 and the American flag has been raised at every important point in 
 that province. I congratulate you on tft success which has thus 
 attended our military and naval operations. In less than seven 
 months after Mexico commenced hostilities, at a time selected by 
 herself, we have taken possession of many of her principal ports, 
 driven back and pursued her invading army, and acquired military 
 possession of the Mexican provinces of New Mexico, New Leon> 
 Coahuila, Tama.ulipas, and the Californias, a territory larger in ex 
 tent than that embraced in the original thirteen States of the Union, 
 inhabited by a considerable population, and much of it more than 
 a thousand miles from the points at which we had to collect our 
 forces and commence our movements. By the blockade, the import 
 and the export trade of the enemy has been cut off. By the Jaws 
 of nations a conquered territory is subject to be governed by the 
 conqueror during his military possession, and until there is either 
 a treaty of peace, or he shall voluntarily withdraw from it. The 
 old civil government being necessarily superseded, it is -the right 
 and duty of the conqueror to secure his conquest, and to provide 
 for the maintenance of civil order and the rights of the inhabitants. 
 This right has been exercised, and this duty performed by our mili 
 tary and naval commanders, by the establishment of temporary 
 governments in some of the conquered provinces in Mexico, assimi 
 lating them, as far as practicable, to the free institutions of our own 
 country. In the provinces of A ew Mexico, and of the Californias 
 little, if any, further resistance is apprehended from the inhabitants 
 
to the temporary governments which have thus, from the necessity 
 of the case, and according to the laws of war, been established. 
 
 It may be proper to provide for the security of these important 
 conquests, by making an adequate appropriation for the purpose of 
 erecting fortification^ and defraying the expenses necessarily inci 
 dent to the maintenance of our possession and authority over 
 them. 
 
 Extracf from the report of the Secretary of War, December, 1846. 
 
 Commodore Stockton took possession of the whole country as a 
 conquest; of the United States, and appointed Colonel Fremont 
 governor, under the law of nations; to assume the functions of that 
 office when he should return to the squadron. 
 
 Extract from the report of the Secretary of the Navy, December , 
 
 1846. 
 
 On the 25th of July, the Cyane, Captain Mervine, sailed from 
 Monterey, with Lieutenant Colonel Fremont and a small volunteer 
 force on board, for San Diego, to intercept the retreat of the Mexi 
 can General Castro/ A few days after, Commodore Stockton-sail 
 ed in the Congress frigate for San Pedro, and, with a detachment 
 from his squadron of three hundred and sixty men, marched to the 
 enemy's camp. It was found that* the camp was broken up, and 
 that the Mexicans, under Governor Pico and General Castro, had 
 retreated so precipitately that Lieutenant Colonel Fremont was dis 
 appointed in intercepting him. On the 13th, Commodore Stockton 
 was joined by this gallant officer, and marched a distance of thirty 
 miles from the sea, and entered without opposition Ciudad de los 
 Angeles, the capital of the Californias; and on the 22d of August, 
 the flag of the United States was flying at every commanding posi 
 tion, and California was in the undisputed military possession of 
 the United States. The conduct of the officers and men of the 
 squadron in these important operations has been characterized by 
 activity, courage, and steady discipline, and entitles them to the 
 thanks of the department. Efficient aid was rendered by Lieuten 
 ant Colonel Fremont and the volunteers under his command. In 
 his hands, Commodore Stockton informs the department, he will 
 leave the military government when he shall ^eave California, in 
 the further execution of his orders. 
 
 It is then certain that, in November, 1846, the President had full 
 knowledge of Commodore Stockton's intention to appoint me gov 
 ernor, when he should return to his ship, to wit, by the 25th of 
 October; and in his message spoke of all his acts in organizing a 
 civil government in a way to imply entire approbation. At the 
 same time that Commodore Stockton sent his despatches, I also 
 wrote to Senator Benton, giving a brief account, for his own infor 
 mation, of what had taken place in California, and especially on 
 the great point of having joined the American settlers in raising 
 the flag of Independence, and overturning the Mexican government 
 in California. It was done before we had knowledge of the war. 
 I felt all its responsibilitiesj moral and political, personal and offi- 
 
10 
 
 eial. It was a resolve made by me, not merely upon serious b,ut 
 upon long and painful reflection. I wrote to Senator Benton, if 
 my conduct was not approved, to give in my resignation, and sent 
 a blank for him to fill up to that effect. Happy had it been for 
 me had the government then disapproved my conduct! 
 
 And here it becomes me to state something, which justice to 
 myself and others, and regard for history, requires to be known. 
 A few facts and dates will establish a great point. 
 
 Commodore Sloat arrived at Monterey on the 2d day of July; 
 he did not take it; he hesitated. On the 7th, he did. He had by 
 that time heard of my operations, and supposed I had positive in 
 structions. On the 15th of July, Commodore Stockton arrived; on 
 the 16th, Admiral Seymour, in the Collingwood, of 80 guns; on 
 the 19th, the mounted force, under Lieutenant Gillespie and my 
 self. Upon priority of time in same of these events probably de 
 pended the fate of California. Commodore Sloat's action was de- 
 te.rmined by mine. His action, on the 7th, anticipated the varrival 
 of Admiral Seymour, who found the American flag flying where it 
 is probable he came prepared to be invited to raise the British. 
 
 California was saved, and also the grant of the three thousand 
 square leagues of land to the Irish priest, Macnamara, (all the 
 original papers of which I have, to deliver up to the government,) 
 was left incomplete, and the land saved, as well as the scheme of 
 colonization defeated. History may some day verify these events, 
 and show that the preservation of California, and the defeat of 
 the three thousand square leagues grant, covering the valley of the, 
 San Joaquin, was owing to the action which determined the action 
 of Commodore Sloat,. 
 
 I left Los Angeles early in September. The insurrection brtfke 
 out there in the same month, and soon spread over all the southern 
 half of California, It extended to near Monterey. It delayed 
 Commodore Stockton's return to the sea, and deferred my own ap 
 pointment as governor. Instead of being occupied in arrange 
 ments to be at San Francisco, on the 25th of October, to be placed 
 "as governor over California," I was engaged, with little other 
 means than personal influence, in raising men from the American 
 settlements, orf the Sacramento, to go south to suppress the insur 
 rection. 
 
 With a small body of men, hastily raised for the emergency, I 
 embarked, according to Commodore' Stockton's orders, first, in 
 boats to descend the bay of San Francisco, and then, in the ship 
 Sterling, to go down the coast to Santa Barbara. We had left our 
 horses, and expected to obtain remounts when w r e landed. Two 
 days after our departure from San Francisco, we fell in with the 
 merchant ship Vandalia, from which I learned, and truly, that no 
 horses could be had below; that, to keep it out of our hands, the 
 Californians had driven all their .stock into the interior, and that 
 San Diego was the only point left in possession of the Americans. 
 I therefore determined to return to Monterey, and make the march 
 overland. I did so, and there I Teamed, on the 27th of October, 
 that I had been appointed lieutenant colonel in the army of the 
 United States. It was now the month of December, the beginning 
 
11 
 
 of 'winter, and the cold distressing rains had commenced. Every 
 thing had to be done, and done quickly, and with inadequate means. 
 In a few weeks all was ready; 400 men mounted; three pieces of 
 artillery on carriages; beef cattle procured; the march commenced. 
 I omit its details to mention the leading events, a knowledge of 
 which is essential to my defence. We made a secret march of 150 
 miles to San Louis Obispo, the seat of a district commandant ; 
 took it by surprise, without firing a gun; captured the commandant, 
 Don Jesus Pico, the head of the insurrection in that quarter, with* 
 thirty-five others, among them the wounded captain who had com 
 manded at La Natividad. Don Jesus was put before a court martial 
 for breaking his parole, sentenced to be shot, but pardoned. That 
 pardon had its influence on all the subsequent events; Don Jesus 
 was the cousin of Don Andreas Pico, against whom I was going, 
 and was married to a lady of the Cavillo family; many hearts were 
 conquered the day he was pardoned, and his own above all. Among 
 the papers seized, was the original despatch of General Flores, 
 which informed us of the action of San Pasqual, but without know 
 ing who commanded on the American side. Don Jesus Pico attached 
 himself to my person, and remained devoted and faithful under try 
 ing circumstances. We pursued our march, passing all the towns 
 on the way without collision with the people, but with great labor 
 from the state of the roads and rains. On Christmas day, 1846, 
 we struggled on the Santa Barbara mountain in a tempest of chill 
 ing rains and winds, in which a hundred horses perished, but the 
 men stood to it, and I mention it to their honor. They deserve 
 that mention, for they are not paid yet. 
 
 We passed the maritime defile of the Rincon, or Punto Gorda, 
 without resistance, flanked by a small vessel which Commodore 
 Stockton had sent -to us, under Lieutenant Selden of the navy. A 
 <corps of observation, of some 50 or 100 horsemen, galloped about 
 us, without . doing or receiving harm; for it did come within my 
 policy to have any of them killed. It was the Camp of this corps 
 which Captain Hamlyn passed, to give me Commodore Stockton's 
 orders, which he" found in the u camp of the willows," as said in 
 his testimony. The defile of San Fernando was also passed, a corps 
 which occupied it falling back as the rifles advanced. We entered 
 the plain of Couenga, occupied by the enemy in considerable force, 
 and I sent a summons to them to lay down their arms, or fight at 
 once. The chiefs desired a parley with me in person. I went alone 
 to see them, (Don Jesus Pico only being with me.) They were wil 
 ling to capitulate to me; the terms were agreed upon. Commis 
 sioners were sent out on both sides to put it into form. It received 
 the sanction of the governor and commander-in-chief, Commodore 
 Stockton, and was reported to the government of the United States. 
 It'was the capitulation of Couenga. It put an end to the war and 
 to the feelings of war. It tranquilized the country, and. gave safe 
 ty to every American /rom the day of its conclusion. 
 
 My march from Monterey to Los Angeles, which we entered on 
 the 14th of January, was a subject for gratulation. A march of 
 400 miles through an insurgent country, without spilling a drop of 
 blood conquering by clemency and justice and so gaining the 
 
hearts of all, that, until troubles came on from a new source, I 
 could have gone back, alone and unarmed, upon the trail of my 
 march, trusting for life and bread to those alone among whom I had 
 marched as conquerer, and whom I have been represented as plun 
 dering and oppressing! I anticipate the orcler of time, but pre 
 serve the connexion of events by copying here from an original 
 private letter to Senator Benton, written at Los Angeles, the 3d of 
 February, 1847, received by him in May at St. Louis, and sent to 
 'the President for his reading, whose endorsement is on the back, in 
 his own hand writing, stating it to have been received from Mr. 
 Christopher Carson on the 8th of June. 
 
 Had it not been for the treatment I have received, the secret pur 
 pose to arrest, the accumulated charges, the publications against 
 me, and other circumstances of the prosecution, I should /have been 
 willing to have read that paper to the court as my sole defence 
 against this charge of mutiny; as things are, I copy from it merely 
 some passages, which illustrate what I have said of 'the effects of 
 that march from Monterey, and tne capitulation of Couenga. 
 
 " Knowing well the views of the cabinet, and satisfied that it was 
 a great national measure to unite California to us as a sister State, 
 by a voluntary expression of the popular will, I had in all my 
 marches through the country, and in all my intercourse with the 
 people, acted invariably in strict accordance with this impression, 
 to which I was naturally further led by my own feelings. I had 
 kept my troops under steady restraint and discipline, and never 
 permitted to thtm a wanton outrage, or any avoidable destruction 
 of property or life. The result has clearly shown the wisdom of 
 the course I have pursued. ** # 
 
 Throughout the Californian population, there is only one feeling of 
 satisfaction and gratitude to myself. The men of the country, most 
 forward and able in the revolution against us, now put themselves 
 at my disposition, and say to me, i Viva usted seguro, duerme usted 
 seguroj (live safe, sleep safe,) { we ourselves will watch over the 
 tranquility of the country, and nothing can happen which shall not 
 be known to you.' The unavailing dissatisfaction on the part of 
 (our) own people, was easily repressed; the treaty was ratified." 
 I I terminate my narrative at the capitulation of Cowenga, because 
 at that point I got into communication with my two superiors, be 
 came involved in their difficulties, and the events began for which 
 I am prosecuted. 
 
 ^ t From this point the evidence begins. My narrative, intended to 
 be brief and rapid, was necessary to the understanding of my posi 
 tion in California, and brings me to the point of the particular o(- 
 fences charged against me. 
 
 Mutiny is first in the order of the charges, and the first specifica 
 tion under it is, for disobeying the negative order of General Kep.r- 
 ny, in relation to the re-organization of the California battalion. 
 
 Governor Stockton gave me an, order to re-organize it; General 
 Kearny sent me an order not to re-organize it; this on the 16th of 
 January, in the night. The next morning I informed General 
 Kearny, by letter, that I thought he and Governor Stockton ought 
 to adjust the question of rank between themselves; and, until that 
 
13 
 
 was dpne, I should have to obey Commodore Stockton, as thereto 
 fore; and gave some statement of facts and reasons for my justifi 
 cation. 
 
 This letter constitutes the alleged act of mutiny; the ingredient 
 of a corrupt motive, in trying to trade for a governorship, has been 
 since added; and now, let the accuser and prosecuting witness 
 speak for himself. 
 
 On the first day of his examination, General Kearny testifies 
 thus: 
 
 u On the day subsequent, viz., on the 17th of January, Lieuten-- 
 ant Colonel Fremont came to my quarters, and in conversation, I 
 asked him whether he had received my communication of the day 
 previous; he acknowledged the receipt of it, and stated that he had 
 written a reply .and left it with his clerk to be copied. 
 
 ^ About this time, a person entered the room with a paper in his 
 hand, which Lieutenant Clonel Fremont took., overlooked, and 
 then used ,the pen upon my table to sign it; his clerk having told 
 him that the signature was w r anting to it. He then handed it to 
 me. At my request, Lieutenant Colonel Fremont took a chair by 
 my table while I read the letter. 
 
 "Having, finished the reading of it, I told him I was an older 
 man than himself; that I was a much older soldier than himself; 
 that I had a greit respect and regard for his wife, and great friend 
 ship for his father-in-law, Colonel Benton, from whom I had re 
 ceived many acts of kindness; that these considerations induced 
 me to volunteer advice to him; and the advice was, that he should 
 take the letter back and destroy it; that I was willing to forget it. 
 Lieutenant Colonel Fremont declined taking it back, and told me 
 that Commodore Stockton would support him in the position taken 
 in that letter. I told him that Commodore Stockton could not sup 
 port him in disobeying the orders of his senior officer^ and that if 
 Le persisted in it he would unquestionably ruin himself: He told 
 me that Commodore Stockton was about to organize a civil govern 
 ment, and intended to appoint him governor of the territory. I 
 told him Commodore Stockton had no such authority, that authority 
 having been conferred on me by the President of the United States. 
 He askedme whether Iwould appoint him governor! I told him that I 
 expected shortly to leave California for Missouri; that I had, pre 
 viously to leaving Santa Fe, asked permission to do so, and was in 
 hopes of receiving it; that, as soon as the country should be qui 
 eted, I should, most probably, orgatiiz-e a civil government, and 
 that I at that time knew of no objection to appointing him as the 
 governor. He then stated to me that he \vould see Commodore 
 ^tockton, and that unless he appointed him governor at once, he 
 would not obey his orders-, and he left me." 
 
 This is the evidence on which the prosecution rests the convic 
 tion, both for the fact, and its imputed base motive; and at this 
 point the defence begins, and will be directed at once to both mo 
 tive and fact, with the belief of showing each to be untrue. 
 
 First, as to the probability of this testimony in all that imputes 
 the dishonorable conduct to me, which is presented as the motive of 
 the meeting. ^ 
 
14 
 
 I hold it to be improbable on its face, and self-evidently unwor 
 thy of credit. It represents me as cooling to General Kearny's 
 quarters without invitation, signing a letter in his presence which 
 I had directed to be brought after me, giving it to him to read, 
 and refusing to take it back and accept his pardon and oblivion for 
 having written it. The writing of . the letter was avowed at the 
 outset of tiie trial, the question now is upon what passed at the 
 time of its delivery. The letter contained reasons which placed 
 my refusal to obey his order on high grounds of fact and law; the 
 testimony presents me as descending at once from all those high 
 reasons to the low and base proposal of virtually selling myself to 
 the best bidder, himself or Commodore Stockton, for a governor 
 ship. According to the testimony, the proposal was abrupt. 
 
 u He asked me whether I would appoint him gpvernor ?" and this 
 sudden offer to sell myself, in a case in w r hich the purchaser would 
 be about as censurable as the seller, far.from exciting indignation, 
 seems to have been courteously entertained; and far from, being in 
 stantly rejected, seemed to be accepted, provided a little time was 
 given for payment. u I (General K.) then told him that I expected 
 shortly to leave California for Missouri, &c., &c.,and that I, at that 
 time, knew of no objections to appointing him as governor." Thus, 
 he had no objection to the transaction only wanted a little time 
 forperformance. I, on the contrary, was for prompt work; for the 
 testimony immediately says: " He then stated to me that he would 
 see Commodore Stockton, and unless he appointed him governor at 
 once, he would not obey his orders; and he left me." 
 
 This is the spirit of trade, with its very language and action, with 
 the clear implication that I immediately went to Commodore Stock 
 ton, and not coming back, had received the appointment at once. 
 Now, all this is too cool and quick. 
 
 * It is improbable on its face, especially coupled with the fact 
 that I left the letter in his hands, after his warning of unquestion 
 able ruin, w r hich now constitutes the alleged act of mutiny, and so 
 put myself completely in his power, both for the fact and the al 
 leged motive. 'The testimony is improbable. 
 
 Secondly. I hold it to be invalidated on the cross-examination. 
 
 This is the next point of view in which I propose to examine this 
 part of the testimony. After his examination came his cross-exam 
 ination; and by means -of that probe and sharp searcher after truth, 
 came out many circumstancss to invalidate the first swearing. 
 Thus, the testimony opens with saying: "Lieutenant Colonel Fre 
 mont came to my quarters," &c., the inference being, that I came 
 of my own head; and, from the sudden manner in which I opened 
 the subject, the further inference being, that I came for the gov- 
 ernorship; and third inference being, from my sudden exit and 
 eagerness to see Commodore Stockton, that my whole business was 
 to see from which I could get the governship the soonest. Now, 
 if I did not come of my own head if General K. himself actually 
 sent for me, and desired to see me on business then all these in 
 ferences, so injurious to me, fall t'o the ground; and the very first 
 words spoken by the witness, though literally true, become jmtriie 
 
testimony, and impart a character to the interview which the truth 
 requires to be reversed. Now let us see how the fact is. 
 
 On the eighth day of the trial, this question was put to General 
 Kearny: "Did he (Lieutenant Colonel Fremont) come of his own 
 head, (as your statement implies,) or did you invite him]" 
 
 The answer to that question was this: " I have no recollection 
 of having invited him to come." On hearing this answer, a small 
 slip of paper with a few words written upon it was exhibited to 
 the witness, and this question addressed to him: " Is this paper an 
 original T' The word original was used on purpose to remind the 
 witness of what had occurred on the first day of the trial, and to 
 show the court that the implication then gratuitously raised against 
 me as a person who would destroy originals, was about to re 
 ceive a retributive rebuke. To this question and slip of paper, the 
 witness answered: u That is my writing, and that is my note." 
 The note was then read, and was in these words: 
 
 "JANUARY 17. 
 
 11 DEAR C/XLONEL: I wish to see you on business. 
 
 "S. W. KEARNY, 
 
 "Brigadier General." 
 
 This settled the question of the coming, and not only showed 
 that it was upon General Kearny's invitation that I came to his 
 quarters on that day, but that it was an invitation in writing, and 
 to a business interview that I was invited, and consequently that it 
 was his seeking and not mine that brought us together, and his 
 business, not mine, that was the object of the interview. The pro 
 duction of this little original worked this great change in the char 
 acter and effect of the evidence; it reversed the character of the 
 coming, and destroyed all the implications arising from >a volunta 
 ry coming of my own head, and for a purpose of my own. 
 
 But suppose this little original had been actually lost or destroy 
 ed, then the first answer of General Kearny, that he had no recol 
 lection of having invited me to come, would have stood with the 
 effect of an affirmation that he had not invited me, and would have 
 left in full force all the injurious implications resulting from a 
 gratuitous visit on such an occasion, and with such a conversation 
 sworn against me. 
 
 As I would have suffered from implications in the first state of 
 his evidence, I claim the benefit of them in its corrected form; and, 
 further, I present it as an instance of the infirmity of his memory^ 
 
 The want of recollection in the witness in this important partic 
 ular, I am instructed by counsel to say, goes to the invalidation of his 
 testimony with respect to the whole interview. The circumstance was 
 an important one. It was a key to the character of the inverview: 
 it decided the character of the interview as being at his instance or 
 mine. It decided -it to be a business interview, and that business 
 his, and not mine. It precludes the idea of my coming to him for 
 any purpose whatever; it fixes the fact that he sent to me for a 
 purpose, and that not a common one, as he invited me to an inter 
 view; which was a private one ; at his own quarters, General Kear- 
 
16 
 
 ny was then in the crisis of his difficulties with Governor Stock 
 ton; he was making a last effort to get me to join him. 
 
 The next circumstance of invalidation which I mention, arising 
 from his own testimony, is in this statement: " He told me that Com 
 modore Stockton was about to organize a civil government, and in 
 tended to appoint him governor; of the territory." Now, it ap 
 pears by his- own letter to Commodore ^tockton of the 16th of 
 January, that he knew that Governor Stockton was then engaged 
 in appointing civil officers for the territory; that, as to intending 
 to appoint me, I could not have said so, because I had been virtu 
 ally appointed since September of 1846, and actually commissioned 
 the day before; and finally, that Governor Stockton had made 
 known to General Kearny at San t)iego, in December, that he in 
 tended to appoint me, and had so informed the government at 
 Washington. (Ninth day's testimony.) 
 
 The next circumstance, to invalidate the witness upon- his own 
 swearing, is, what he says he stated in reply to the request to be 
 appointed governor, namely, u that he (General Kearny) at that 
 time knew of no objection to appointing him governor, when he 
 left the country," &c., &c. Time is the material point in this 
 statement, and this point the witness has fortunately made clear, 
 both by collocation and cross-examination. It is placed near the 
 end of the interview, and after the act of meeting, with all its ag 
 gravations, had- been consummated in his presence; and the cross- 
 examination shews it to be in the right place. This cross-exami 
 nation took place on the. ninth day of the trial, and shews thatrit 
 was after the supposed crime, for which I am now prosecuted, was 
 consummated in his presence, that he was able to see no objection 
 to appointing me governor of California. 
 
 From this it results that my conduct that day did not appear to 
 be mutiny, or, that mutiny, was no objection to his appointing me 
 governor of California. In either event, I present the circumstance 
 as invalidating his testimony, as it is impossible to reconcile the 
 opposite opinions of my conduct which the declaration of that day, 
 and the prosecution of this day present. 
 
 The next invalidating circumstance which I draw from the cross- 
 examination, is, in the difference which it exhibits to the first day's 
 testimony 'in relation to this alleged application for the governor 
 ship, and the answer to it. The first day's testimony professes to 
 give the interview full and complete, and in the exact words of 
 each speaker; the cross-examination on the 10th day makes mate 
 rial variations. The first day's testimony says: u He asked me 
 whether I would appoint him governor ?" That is a single ques 
 tion as to the fact. The cross-examination adds another, as to 
 time., by adding, " and when ?" and that led to a corresponding 
 difference in the answer, by substituting " a month or six weeks," 
 for " shortly." The cross-examination of the same day, and of 
 the 9th also, brought the fact of two material omissions in that re 
 port of the conversation of the 17th. One related to the fact of 
 Lieutenant Colonel Fremont's urging him (General Kearny) to 
 have a personal interview with Governor Stockton, and expressing 
 the belief that all difficulties between them could be settled in such 
 
17 
 
 an interview; the other, in bringing out the fact that I appeared to 
 be greatly distressed at the differences between the two superior 
 officers. Neither of these important facts are mentioned in the di 
 rect testimony, purporting to b'e verbally exact, and precisely full, 
 neither more nor less; but, not only are these points omitted, but. 
 as told, there is no part of the conversation to which they could be 
 applicable no place where they would fit in; from which the con 
 clusion is inevitable, that some whole topics, and of a very differ 
 ent kind from those related, were forgotten in that report of a con 
 versation. 
 
 To be distressed at the state of things between the two superi 
 ors, was a different thing from making dissensions between them; 
 to endeavor to get them together for the purpose of reconciliation, 
 was very different from committing mutiny against one of them. 
 Yet these circumstances, so important to the fair and just under 
 standing of my conduct and feelings, are wholly omitted in the 
 direct testimony, and only imperfectly got out in the cross-exami 
 nation, without the topics to which they belong, and without sho"w- 
 ing a place in the reported conversation to which they could be 
 applicable, or made to fit; thereby implying greater omissions than 
 have been discovered. As if to deprive me of the merit which these 
 disclosures implied, the 'witness added, "Lieutenant Colonel Fre 
 mont might have effected an interview between Commodore Stock 
 ton and myself; perhaps there were, but few others at Los Angeles 
 who could have done it." 
 
 I certainly believed I could have effected the interview. Gov 
 ernor Stockton had no objection to it, but General Kearney's sud 
 den departure the next morning, without notice to me, frustrated 
 any such attempt at reconciliation. (Tenth day's testimony, near 
 the close.) 
 
 The next invalidating circumstance, drawn from the cross-exami*- 
 nation in relation to the same point, is, in not suppressing, or en 
 deavoring to suppress, the alleged mutiny at the time it is charged 
 to have been committed. 
 
 The eighth article of war, copied from the British mutiny act, is 
 imperative that, u any officer, non-commissioned officer, or soldier, 
 who, being present at any mutiny or sedition, does not use his ut 
 most endeavor to suppress the same, or, coming to the knowledge 
 of any intended mutiny, does not, without delay, give information 
 thereof to his commanding officer, shall be punished, by the sen 
 tence of a general court martial, with death) or otherwise, accord 
 ing to the nature of his offence. 5 ' As a further test to ascertain 
 General Kearny's opinion of my conduct on that day, the follow 
 ing question was put to him: " Did you do your utmost to suppress 
 the mutiny of which Lieutenant Colonel Fremont is charged with 
 being guilty in your quarters, and in your presence?" The judge 
 advocate reminded the witness of his privilege to refuse to answer 
 where he might subject himself to a penalty, but the witness did 
 not claim his privilege, and answered: " Nothing further passed 
 between Lieutenant Colonel Fremont and myself in the interview, 
 
18 
 
 than what I have stated;" (adding, the next day, " to the best of 
 my recollection.") 
 
 This is clear that General Kearny did nothing to suppress the 
 supposed mutiny, and equally clear that he gives no reason for not 
 doing so. He was in his own quarters in the house where his 
 troops were quartered and he testified that he does not think Com 
 modore Stockton would have used force. The inference is, that 
 either he did not consider it mutiny then, or that he had some 
 reason, not yet told, for not doing his duty. The former is the 
 probable one, because ^it corresponds with the cotemporary decla 
 ration of knowing no objection to appointing me governor, and 
 for the further reason that it appears, from his own evidence, that 
 he gave me in the month of March, several orders to execute, 
 implying trust and confidence, and wholly inconsistent with his 
 duty, under the eighth article of war, and wholly inconsistent with 
 military usage, if he then believed me to be guilty of mutiny. 
 
 For these reasons, I consider his testimony further invalidated 
 upon his own evidence, drawn out upon his own examination. 
 
 The next circumstance to invalidate the testimony of this wit 
 ness, arising out of his own cross-examination, is what relates to 
 the bearer of my letter of the 17th of January. 
 
 In his direct testimony, General Kearny spoke of him as being- 
 my clerk. As I kept no clerk, and knowing that Lieutenant Tal- 
 bott had copied the letter, and that Mr. Christopher Carson had 
 brought it to me, (for in my anxiety at the state of things, and 
 hope for some better understanding, I went in such haste to General 
 Kearny's quarters, on receiving his invitation, as to leave my 
 letter in the hands of a copyist, to be sent after me,) I undertook 
 to turn his mind towards the right person, by asking who the 
 person was who brought that letter. To that question he answered: 
 U I do not know. I had never seen him before; nor do I know 
 that I have ever seen him since." I then put the question direct: 
 " Was not that person Mr. Christopher Carson?" To which the 
 answer was: " I think not." This answer terminated the interro 
 gatories upon that point; and, according to the evidence, the fact 
 was established that net only it was not Mr. Carson who brought 
 the letter, but that -it was some strange person whom General 
 Kearny had never seen before or since. The defect of memory 
 became so glaring in this instance, that it wa^ deemed essential 
 by my counsel to expose it; and something, like a Providence, 
 enabled me to do so. 
 
 Mr. Carson, the best witness, had returned to California; Lieu 
 tenant Talbott, who copied the letter, and sent him with it, was 
 the next best witness; and he had been ordered to Mexico by sea. 
 In passing some of the Florida reefs, the vessel he was in was 
 wrecked, but the lives of the passengers were saved; and Lieu 
 tenant Talbott, with his command, had returned to Charleston. 
 Hearing all this, an order and summons was despatched for him; 
 he came; and, being examined before this court, he testified to the 
 facts that he had copied the leUer at my request, and sent it after 
 
19 
 
 
 
 | 
 
 me by Mr. Carson to General Kearny's quarters. Captain Hensley 
 gave corroborating testimony; and thus the fact established by 
 General Kearny's testimony, that it was not Mr. Carson who 
 brought the letter, nor any person that General Kearny had ever 
 seen before or since, was entirely disproved. Certainly the fact in 
 itself, as to who brought the letter, .was not very material; but it 
 became eminently so from the answers of the witness. For General 
 Kearny not to know Kit Carson; not to remember him when he 
 brought the letter on which this prosecution is based; to swear that 
 he had never seen the man before or since, who brought that letter, 
 when that man was the same express from Commodore Stockton 
 and myself from whom he got the despatches; whom he turned 
 back from the confines of New Mexico, and made his guide to Cal 
 ifornia; the man who showed him the way, step by step, in that long 
 and dreary march; who was with him in the fight of San Pasqual; 
 with him on the beseiged and desolate hill of San Bernardo; who 
 volunteered, with Lieutenant Beale and the Indians, to go to San 
 Diego for relief, and whose application to go was at first refused, 
 "because he could not spare him;" who was afterwards the comman 
 der of the scouts on the march from San Diego to Los Angeles ; 
 not to know this man who had been his, guide for so many months, 
 and whom but few see once without remembering; and not only not 
 to know him, but to swear that he had never seen him before or 
 since. This, indeed, was exhibiting an infirmity of memory almost 
 amounting to no memory at all. 
 
 In that point of view I present it to the court, and to invalidate 
 all the testimony of General Kearny, with respect to my words, or 
 his words in that alleged conversation of the 17th of January. 
 Acts and facts are more easily remembered than words; persons 
 and things seen are more easily remembered than expressions 
 heard; and after forgetting his own act, in writing to me to come 
 to see him on business; after forgetting the fact of seeing the fa 
 mous Kit Carson bring the letter which he has so long saved for 
 this prosecution, I am instructed, by counsel, to say that the law 
 discredits him as a witness. 
 
 Thirdly. Discredited by his own conduct. 
 
 I hold that, the charge is discredited by General Kearny's own 
 conduct at the time, in not reporting it to Governor Stockton, or 
 to the government of the United States. In neither of the two let 
 ters written by him to Governor Stockton, on the same day with 
 my alleged offer to sel'l the California battalion to him for a gov 
 ernorship, accompanied by a menace of revolt against Governor 
 Stockton, is testified to have taken place, is the remotest hint or 
 allusion to any such transaction. Now, whatever may have been 
 General Kearny's opinion of his own rights, and of the refusal of 
 Governor Stockton to recognize his claims, considerations of pub 
 lic duty ought to have prompted him, before going away and leav 
 ing the interests of the country entirely in the hands of Governor 
 Stockton, with a known intention of presently committing them to 
 me, ought to have induced him to warn that officer of my conduct, 
 and threat of sedition, if any such had taken place. u 
 
20 
 
 v 
 
 On the other hand, if considerations of public duty are not the 
 motive that had influence with him, but, instead, his private resent 
 ments, these also, whether against Commodore Stockton, myself, 
 or both, would equally have prompted him to the disclosure, had 
 there been any to make; for, if after being informed of such insub 
 ordination, Governor Stockton had still persisted in his intentions 
 towards me, (continuing my command, and leaving me in the gov 
 ernorship,) the witness would have fastened upon both a corrupt 
 intrigue and collusion; or, if Governor Stockton had acted upon 
 the information, as would have been proper to act, and as he pro 
 bably would have acted, namely, taken away my command, and 
 possibly seized my person, then that " UNQUESTIONABLE RUIN," in 
 timated as in reserve for me, would have been sooner accomplished. 
 
 Had that which is now charged upon me actually taken place, the 
 suppression of the fact, at that time, when fresh and working in the 
 mind of the witness, as it must have done, cannot, with the reasons 
 and inducements which existed for its disclosure, be accounted for 
 on any known principle of human.conduct. 
 
 Besides these two letters to Governor Stockton of that day, both 
 silent on this charge, the witness also wrote to the War Department 
 on the same day, and reporting both Governor Stockton and myself 
 as refusing to obey him, or the instructions of the President; 
 and neither in that letter is there the slightest hint or allusion 
 to any such transaction as General Kearny has now testified to. 
 
 There is a case at the "Old Bailey where a person was convicted 
 and executed, mainly on the presumption which a very similar 
 omission to this raised. It was the case of Governor Wall, tried 
 at the Old Bailey, in 1802, on a charge of murder, committed, un 
 der color of official duty, in the punishment of a soldier at Goree, 
 off the coast of Africa, twenty years before. 
 
 The soldier was punished with eight hundred lashes, in conse 
 quence of which he died two days after. The defence setup, was, 
 that a part of the troops of the garrison were in a state of MUTINY, 
 of which the soldier punished was the ringleader; and that the pun 
 ishment was inflicted under the article of war which requires an 
 officer present at a mutiny to do his utmost to suppress it. 
 
 The prosecution proved that Governor Wall went away from the 
 place on the day following the alleged acts of mutiny , and with him 
 two officers ; and that, arriving in England, he reported, in writing, 
 to the government concerning the affairs of the garrison, BUT MADE 
 
 NO MENTION OF THE ALLEGED MUTINY. 
 
 The lord chief baron, MacDonald, dwelt upon that omission, and 
 pointed it out to the jury. There was other evidence on the 
 point of MUTINY or no mutiny; but it was nearly balanced, and 
 this omission became the great point in the case. The governor 
 was convicted; and notwithstanding the most powerful efforts to 
 obtain his pardon, the king (George III.) refused to grant it ; and 
 he was hung at Tyburn, according to his sentence, and his body 
 given up to the surgeons to be dissected and anatomized. 
 
 The presumption raised in the present instance is stronger than 
 in the one I have quoted. There the report referred only to the 
 
21 
 
 affairs of the garrison generally; here it relates exclusively to the 
 subject now in issue. There, if there had been a mutiny there was 
 no occasion for the action of the government; for the mutiny, such 
 as it was, had been suppressed and the mutineers punished; here the 
 report was specially for the action of the government on the case 
 stated. There, the omission was merely a matter left out, not affecting, 
 in any way, what was put in; here, the omission is of the material part, 
 and without which not only an imperfect but a false view is given 
 to the whole. There, the letter was written six weeks after the oc 
 currence, and at a great distance from the scene of it; here, it was 
 written on the spot the same day. All the reasons for General 
 Kearny to have reported my alleged mutiny, and the base motive 
 for it in the imputed attempted bargaining about the governship, 
 are infinitely stronger than in the case of Governor Wall. The 
 omission was a heavy circumstance against him in his case; it must 
 be more so in the present one; and authorizes me to say that the 
 testimony of the witness here is discredited by his. own conduct, 
 at the time of these imputed offences. 
 
 Fourthly. I now take a more decided view of this testimony 
 in relation to governorship, and say that besides being improbable 
 on its face, invalidated on the cross-examination, and discredited 
 by his own conduct, it is disproved by facts and witnesses. The 
 imputed bargaining for the governorship is the point of the mutiny 
 and the base and sordid cause of it. Now, if there was no bar 
 gaining, or attempt at it, for the governorship, then there was 
 no mutiny; and the whole charge, with its imputed motive and in 
 ferences, falls to the ground. And, now, how was the fact? That 
 as early as August, 1846, Governor Stockton, of his own head, se 
 lected me for his successor as governor and commander-in-chief in 
 California. That he informed me of it at the time by letter, and 
 also informed the government of the United States of it, and 
 had actually fixed the 25th day of October, 1816, for his own return 
 to his squadron, and fgr my installation as governor, and was only 
 delayed in that intention by the breaking out of the insurrection. 
 That he informed fteneral Kearny of all this at San Diego, by giv 
 ing him a copy of his official dispatch to the government to read; 
 that, arriving at Los Angeles in January, he immediately proceeded 
 to consummate his delayed intention, making all preparations for 
 his own departure and for my installation, appointing me governor 
 in form, appointing a secretary of my choice, appointing the coun 
 cil, immediately filling up my place in the California battalion by 
 promoting Captain Gillespie to be major; and all these things done 
 and completed by the 16th, and so known generally at the time, and 
 actually known to General Kearny himself, as appears by his own 
 letter, of that date, 'to "acting Governor Stockton," forbidding the 
 appointments; and also by his cross-examination before this court. 
 
 The following are passages from the letter: 
 
 "I am informed that you are now engaged in organizing^ civil 
 government, and appointing officers for it in this territory." 
 you have not such authority, (from th^ President,) I then demand 
 
22 
 
 that you cease all further proceedings relating to the formation of 
 a civil government for this territory, as I cannot recognize in you 
 any right in assuming to perform duties confided to me by the 
 President." (Tenth day.) 
 
 The cross-examination of the same day fully sustains the asser 
 tion that, on the 16th, General Kearny knew that Governor Stock 
 ton was appointing the governor and secretary for California, and 
 his letter to the department, of the same date, (16th,) shows that 
 he not only knew it, but reported it. These facts disprove the 
 assertion that, on the 17th, I asked General Kearny for the gov 
 ernorship of California; disprove \he assertion that I would see 
 Commodore Stockton, and, unless he gave it at once, I would not 
 obey his orders. The facts disprove it, for all the forms of be 
 stowing the appointment had been completed the day before, while 
 the appointment itself had been virtually and actually made for 
 near six months before. 
 
 I will now proceed to the positive testimony of an unimpeached 
 and unimpeachable witness, to disprove the testimony of General 
 Kearny in relation to this governorship. 
 
 Colonel Wm. H. Russell, a witness introduced on the thirty- 
 v sixth day of the trial, testified that he was sent by Lieutenant 
 Colonel Fremont from the plains of Couenga, about the 13th of 
 January, to Los Angeles, to ascertain who was in chief command, 
 and to make report of the capitulation of Couenga. I leave out, 
 at this time, all notice of his testimony, except what relates to the 
 governorship. He says^he went first to General Kearny's quarters; 
 afterwards to Commodore Stockton's; returned, by invitation of 
 General Kearny, and supped and slept at his quarters. On this re 
 turn the chief conversation took place, and now the very words of 
 the witness shall be given. Colonel Russell says: " In that con 
 versation he (General Kearny) expressed great pleasure at Colonel 
 Fremont's being in the country; spoke of his eminent qualifications 
 for the office of governor, from his knowledge of the Spanish lan 
 guage, of the manners of the people, &c.; anjj of his (General 
 Kearny's) intention to have appointed him governor, if the instruc 
 tions he brought from the Secretary of War had been recognized 
 in California." "It (the conversation about the governorship) was 
 a subject of very much conversation, protracted to a late hour in 
 the night. He told me of his civil appointments in New Mexico, 
 and of his determination to have appointed Colonel Fremont gov 
 ernor." "He said that so soon as he could organize a civil gov 
 ernment, it was his intention to return to the United States, and 
 finding so suitable a person as Colonel Fremont in the country to 
 take the place of governor, his design need not be long postponed. 
 I do not pretend to quote his exact words." 
 
 On the thirty-eighth day of the trial, and after objections to cer 
 tain questions to Colonel Russell had been sustained by the court, 
 his direct examination was resumed, and he testified, (after stating 
 that he rode out the next morning and met Lieut. Colonel Fremont, 
 then entering Lbs Angeles, at head of his battalion,) "I informed him 
 (Lieutenant Colonel Fremont) that both General Kearny and Com- 
 
23 
 
 modore Stockton were anxious to confer upon him the office of 
 governor, and his only difficulty would be in the choice between 
 them." " Commodore Stockton informed me, on the evening of the 
 13th, on my second interview with him, that he intended to confer 
 the office of governor on Lieutenant Colonel Fremont, as I under 
 stood, immediately on his arrival at Los Angeles. I think it was 
 a matter of ordinary publicity throughout the city." " On the 
 morning, as I suppose, of the 16th, I was at Commodore Stock 
 ton's quarters, and he informed me that the commission for Lieu 
 tenant Colonel Fremont as governor, and my own as secretary [of 
 state, were then in the act of being made out by his clerk, and 
 desired me to ask Lieutenant Colonel Fremont to be at his quarters 
 by a given hour, v when the commissions would be ready for delivery. 
 I made this, communication to Lieutenant Colonel Fremont, and at 
 the appointed time returned with him to Commodore Stockton's 
 quarters, when he (the commodore) accordingly handed the com 
 missions to each of us. 
 
 "I want to qualify here, as I am told there is some discrepancy 
 a.bout dates. I presume it was the 16th, because the commissions 
 bear that date, and for the further reason that it was within two or 
 three days of the arrival of Lieutenant Colonel Fremont at Los 
 Angeles." This was on the direct examination. 
 
 On the cross-examination, on the fortieth day of the trial, the 
 witness (Colonel Russell) in reply to questions, confirmed all that 
 he had said, and added: "That in all the conversations I had with 
 General Kearny on that evening, (13th January,) I understood it to 
 be his wish to appoint Lieutenant Colonel Fremont as governor, if 
 he could rightfully do so." 
 
 On his re-introduction, on the fifty-first day of the trial, General 
 Kearny was allowed to testify, not to new matter introduced by the 
 defence, but to re-testify to the points on which he had before been 
 fully examined, and in so swearing contradicted Colonel Russell. 
 I asked to have the witnesses confronted before the court; it was 
 refused. I asked to introduce gentlemen of the highest standing in 
 the United States, namely, Mr. Clay;, and Mr. Crittenden, Mr. Jus 
 tice Catron, of the Supreme Court, Hon. Mr. French, of the House 
 of Representatives, from Kentucky, Hon. Mr. Jamieson,of the same 
 House of Representatives, from Missouri, to sustain the general 
 character of Colonel Russell for truth and varacity; it was refused 
 by the court, and this reason assigned: 
 
 "The court does not consider contradictory statements, where 
 fraud is not imputed, as involving a right in a party to sustain the 
 credit of a witness by evidence to his general character. 
 
 " In the case presented here, apparently in reference to the exami 
 nation of witnesses by the court itself, which could not be sup 
 posed to aim at discrediting any witness, and which has not 
 impeached any witness, the court cannot now admit testimony, 
 which would be of doubtful admissibility, to rebut any examination 
 by a party. To grant the request of the accused, might imply a 
 doubt on the part of the court as to the integrity and general char 
 acter of the witness, which the court does not entertain." 
 
24 
 
 This reason, and the refusal to confront General Kearny and 
 Colonel Russell at a point of the testimony so vital to my honor, 
 I am instructed by counsel to say, could only have been given 
 upon the admission of full faith and credit being given to Colonel 
 Russell on all the points of his testimony contradicted by General 
 Kearny. 
 
 Upon this supposition nothing further would need to be said, in 
 support of Colonel Russell's credit, but it is impossible to overlook 
 the glaring fact, on the part of the prosecution, of the non-produc 
 tion of Captain Turner, at the time of the re-introduction of Gen 
 eral Kearny. All the testimony, on both sides, shows the general 
 or frequent presence of Captain Turner at the day, the night, the 
 table and the bed conversations on the 13th January, at General 
 Kearny's quarters, which were also the quarters of Captain Turner, 
 and he frequently referred to in the course of the testimony. If 
 he could contradict Colonel Russell, it would be weighty; if he 
 could merely say that he heard ho such thing, it would be some 
 thing; if he could say that General Kearny told him differently at 
 the time, it would be some corroboration of what he now says; but, 
 instead of this, not to re-introcluc him at all, when he is the wit 
 ness for the prosecution, and actually present, as he then was 
 in the ante-room of the court, is to admit the presumption of the 
 law that his non-production under such circumstances, is a circum 
 stance in favor of Colonel Russell's testimony. 
 
 The attempt to weaken Colonel Russell's testimony at this point,, 
 by taking exception to the word "INTENDED" to return to Missouri, 
 ends in the corroboration of it. At best, it is only the difference 
 between expected and intended^ (and Colonel Russell, in his direct 
 testimony, said he was not certain of the exact word,) for General 
 Kearny, in his direct testimony, testified that he expected SHORTLY 
 to leave California for Missouri, in consequence of the leave he 
 had asked before he left Santa Fe; and on his cross-examination 
 he substituted " a month or six weeks" for the term SHORTLY,. 
 either of which corresponds with Colonel Russell's statement, and 
 nullifies the argument against the " OPEN QUESTION"- on which 
 General Kearny so much relied. 
 
 And thus, I say that the testimony of General Kearny is dis 
 proved by the positive testimony of an unimpeached, an unim 
 peachable witness, as well as by established facts. 
 
 Fifthly. I say that this statement, that I asked General Kearny 
 for the governorship is disavowed by the entire tenor of my life. 
 I have neither begged nor bargained for offices. My first appoint 
 ment, as second lieutenant of topographical engineers, was given 
 me by President Jackson, Mr. Poinsett being Secretary at War, 
 when I was 'far distant on the Upper Mississippi, assisting Mr. 
 Nicollet in his great survey of that region. My brevet of captain 
 was given by President Tyler, Mr. Wilkins being Secretary at War, 
 without solicitation from myself or friends. The appointment of 
 lieutenant colonel came to me in California, when I was not even 
 thinking of it; and, I am assured by Senator Benton, that it was 
 President Folk's own act, not only unasked by him, but that he 
 
25 
 
 refused to consent that any friend should name such a thing to the 
 President. 
 
 The three appointments given to me by Commodore Stockton, 
 (those of major of the California battalion, military commandant 
 of California, and governor and commander-in-chief in California,) 
 were all given of his own head, without solicitation or hint from 
 me. Such has been the uniform tenor of my life in respect to 
 office, and General Kearny is no exception to it. 
 
 The uniform conduct of my life disavows the application which 
 he says I made to him; and I claim the benefit of that disavowal 
 in a case where a request would be infamous, which I never made, 
 when it might have been done with honor. 
 
 Sixthly. Having shown that this testimony of General Kearny 
 is improbable on its face, invalidated on his own cross-examina 
 tion, discredited by his own conduct, disproved by positive testi 
 mony, and disavowed by the tenor of my life, 1 now come to the 
 last, and only remaining species of testimony that of my own 
 declaration. Happily, I have no new declaration to make; I 
 have only to show the statement which I made for the eye of pri 
 vate friendship, in the mere course of narrative, and as a circum 
 stance in the history of the transaction, near twelve months ago, 
 when the event was fresh, no question about it, and none of any 
 kind ever expected. In that private letter to Senator Benton, al 
 ready referred to, written at Los Angeles, and dated the 3d day of 
 February, 1847, are these words: 
 
 " Both offered me the commission and post of governor; Com 
 modore Stockton, to redeem his pledge to that effect, immediately, 
 and General Kearny offering to give the commission in four or six 
 weeks." 
 
 This is what I then wrote for the eye of private friendship, and 
 what I now produce to this court as my own testimony in this case. 
 IT IS TRUE. And I now owe it to myself, to my friends, and 
 to good men, whose esteem I desire to possess, to declare, and to 
 make the declaration upon responsibilities infinitely Higher than 
 those of military honor or commission, that Brigadier General 
 Kearny, in all that he has testified in relation to this governorship, 
 has borne false witness against me. 
 
 I dismiss this topic, the only one in the multiplied charges 
 agrfinst me which concerns my honor, with the reflection which 
 springs of itself from the case and finds a response in every gener 
 ous mind, that General Kearny himself undertook to seduce me 
 with this governorship, and failing to do so, has raised against me 
 the false accusation of applying to him for it, and has sworn to it. 
 
 And I here close my defence, both as to the fact and the motive, 
 of specification first, in charge first, for the crime of mutiny. 
 
 I proceed now to defend the same act under a different charge; 
 for it so happens in this trial that the same set of acts are placed 
 under different charges, some under t^o charges, namely, mutiny 
 and disobedience of orders; and some under three, the same act, 
 in some instances, being carried out under the charge of conduct 
 
26 
 
 prejudicial to good order and discipline^ as well as under the heads 
 of mutiny and disobedience of orders. 
 
 I refer to a paper, heretofore filed, for the opinion which my 
 counsel entertain of these multiplied charges upon the same set of 
 acts. They consider them as so many different trials for the same 
 thing, and wholly unjustified by the practice which admits 
 less degrees of the same offence to be found, according to the proof 
 produced on the trial. Here the charges are on the same acts for 
 different kinds of offences, and the same evidence adduced under 
 each, and the same that was adduced before the trial, when the 
 charges were framed, as before this court, when they are tried. 
 My counsel instruct me to say it is a clear case of two trials and 
 three trials for the same matter; but I take no legal objection 
 to it. 
 
 To save the labor of re-stating questions, and of re-producing 
 proofs as many times as the same specifications are repeated under 
 different charges, I prefer to pursue each one, when I begin it, 
 through all the charges; and thus finish with it complete, and have 
 all my trials over upon it, before I begin with another. This 
 method will be convenient to me, and probably no disadvantage to 
 the prosecution, as it will get all the chances of conviction, which 
 the multiplied charges require, though, perhaps, not in the order 
 they would regularly imply. 
 
 'l begin with my letter to General Kearny, of the 17th of Janu 
 ary, w r hich he produces under the charge of disobedience of orders, 
 as well as -under that of mutiny, and as evidence to prove both, and 
 which I produce as containing the facts and the law which dis 
 prove each. That letter is in these words: 
 
 CIUDAD DE Los ANGELES, 
 
 January 17, 1847. 
 
 SIR: I have the honor to be in receipt of your favor of last night, 
 in which I am directed to suspend the execution of orders which, 
 in my capacity as military commandant of this territory, I had re 
 ceived from Commodore Stockton, governor and commander-in- 
 chief in California. 
 
 I avail myself of an early hour this morning to make such a re 
 ply as the brief time allowed for reflection will enable me. 
 
 I found Commodore Stockton, in possession of the country, exer 
 cising the functions of military commander and civil governor, as 
 early as July of last year; and shortly thereafter I received from 
 him the commission of^military commandant, the duties of which I 
 immediately entered upon, and have continued to exercise to the 
 present moment. 
 
 I found also, on my arrival at this place, some three or four days 
 since, Commodore Stockton still exercising the functions of civil 
 and military governor, with the same apparent deference to his 
 rank on the part of all officers (including yourself) as he main-* 
 tained and required when he assumed in July last. 
 
 I learned also, in conversation with you, that, on the march from 
 San Diego, recently, to this place, you entered upon and 
 
27 
 
 discharged duties implying an acknowledgment, on your part, of 
 supremacy to Commodore Stockton. 
 
 I feel, therefore, with great deference to your professional and 
 personal character, constrained to say that, until you and Commo 
 dore Stockton adjust between yourselves the question of rank, where 
 I respectfully think the difficulty belongs, I shall have to report . 
 and receive orders, as heretofore, from the commodore. 
 
 With considerations of high regard, I am, sir, your obedient 
 servant, , 
 
 J. C. FREMONT, 
 
 Lieutenant Colonel, United States Army, and 
 Military Commandant of the Territory of California. 
 
 To Brigadier General S. W. KEARNY, 
 
 United States Army. 
 
 This letter was signed in the quarters of General Kearny, and in 
 his presence, and delivered to him by myself. He read it in my 
 presence, and has produced it here as evidence against me, and, in 
 so doing, has made it evidence against himself. What he did not 
 then deny, he admitted; and I will show, from his own testimony, 
 that that is the case with the whole letter. He contradicted no part 
 of it; therefore he admitted every part of it; and this results from . 
 his own swearing, in which he professes to give an exact verbal 
 account, no more, no less, of all that passed at that interview, of 
 the letter, from my entrance, at the beginning, to my exit at the end; 
 and not one word of my letter contradicted -in the whole account. 
 I will now analyze its statements of law and fact, so far as they 
 apply to this charge of disobedience of orders, and show it to be a 
 complete refutation of the charge founded upon it. The letter is 
 the text of my defence, and the developement of its positions will 
 make its leading argument. I am advised by counsel that it is com 
 plete in itself, and, such as it was written that morning, needs no 
 aid from subsequent reflection or legal advice; and on that letter, 
 as it is, both for the law and the fact, I stand all the multiplied 
 trials which are founded upon it. 
 
 First. It fixes the time of sending the countermanding order to 
 me a most material point which could not be fixed by any exami 
 nation, or cross-examination of General Kearny. All the multiplied 
 questions put to him, and by all parties, the judge advocate, my 
 self, and the court, left the time of the day uncertain, and led to a 
 wrong time, as being at some period of the day, and even the fore 
 part of the day, of the 16th of January. (See 8th and 9th days of 
 the testimony.) My letter fixes the time; it opens with fixing it. 
 It fixes it to the night. The first line acknowledges the receipt of 
 your favor (i. e. the countermanding order) of last night. No 
 denial was made of having sent this order at night; and thus that 
 period was confessed. 
 
 Second. It fixes the character in which I myself was then acting, 
 and a knowledge of which was so material to the case, and so dif 
 ficult to be obtained from the prosecuting witness. It shows that 
 
28 
 
 I was military commandant of the territory; and that the order I 
 was required to cease from executing was an order in relation to 
 the battalion under my command as military commandant. It fixes 
 the fact that the order came to me in that capacity; for so my let 
 ter asserts, and it was not contradicted by General Kearny when 
 read by him. 
 
 Third. It fixes the character of Commodore Stockton in giving 
 me the order to reorganize the battalion; for it names him as giving 
 the order, and describes him as governor and Commander-in-chief 
 in California. 
 
 Fourth. It fixes the fact that on my arrival at Los Angeles, (14th 
 January,) Commodore Stockton was exercising the functions of civil 
 and military governor with apparent deference to his rank by Gen 
 eral Kearny, for that is asserted in the letter, and was not contra 
 dicted by him. 
 
 Fifth. It also fixes the fact tfrat, on the march from San Diego 
 to Los Angeles, General Kearny discharged duties implying the su 
 premacy of Commodore Stockton; for that is asserted to have been 
 learnt by me, from conversations with General Kearny himself, and 
 was not denied by him. 
 
 These important facts, five in number, are fixed and established 
 by the letter; for they were not denied -when the letter was read. 
 I am advised by counsel that the law takes for confessed whatever 
 is said to a man in his presence, and not contradicted, at the time, 
 by him. General Kearny's testimony, professing to give a full ac 
 count of all that was said, on both sides, during the whole in 
 terview -at the reception of the* letter, is silent upon all these 
 points; and it is too late now to think of contradicting what was 
 then, by all the rules of evidence, irrevocably admitted. That 
 letter and its delivery in his presence, and being read in my 
 presence, besides containing the facts of the case, and the law 
 of the case, becomes also the evidence of the case. If that 
 order had not been written or sent in the night, that was 
 the time for General Kearny to have said so. If the order had 
 not been intended for me, in my capacity of military com 
 mandant of the territory, that was the time for him to have cor 
 rected my error. If Commodore Stockton was not then gover 
 nor and commander-in-chief in California, then was the time for 
 him to have told me so. If Commodore Stockton had not been ex 
 ercising the functions of military commander and civil governor^ 
 from the month of July preceding, then was the time for him to 
 have contradicted the assertion of it in my letter. If I had not 
 found the commodore exercising the same functions on my arrival 
 at Los Angeles, three days before, with apparent deference on the 
 part of all officers, General Kearny inclusive, that was the time for 
 him to have denied the assertion, or, at all events, to have pro 
 tested against the inclusion of himself in that obedient and defer 
 ential class of officers. If I had not learnt in conversation with 
 himself that, in the march from San Diego, and also there, at Los 
 Angeles, he had not entered upon and discharged duties implying^ 
 07i his part, an acknowledgment of Commodore Stockton's supre- 
 
29 
 
 macy, then was the time for him to have told me that I labored 
 under. a total mistake in my misunderstanding of his conversations. 
 
 If there was no question of rank then (on the 17th) depending 
 between himself and Governor Stockton, he ought to have said so. 
 If it had not been right for me to remain as I was until they ad 
 justed that question, then was the time for him to say so to me. If 
 the difficulty was not between the two superiors alone, then was 
 the time for him to have cast it upon me. If I had ever reported 
 to him, or received orders from him, surely it was the time to tell 
 me so when he was reading that last paragraph of my letter, in 
 which the contrary is asserted in the declaration, that I should have 
 to report and to receive orders u as heretofore," from Commodore 
 Stockton. If all, or any of these points \vere not true, then was 
 the time, and there was the place, and that was the occasion, to 
 have denied them. Denial, omitted then, cannot be supplied now. 
 And both law, reason, and justice, require my uncontradicted letter 
 of that day to remain as established truth in this question between 
 General Kearny and myself. 
 
 Clear and strong in its facts, the letter is equally just and legal 
 in its conclusions. It does not refuse obedience to General Kearny, 
 but defers it until he and Commodore Stockton adjust the question 
 of rank between themselves; it respectfully suggests to him that 
 the settlement of the difficulty belongs to himself and Commodore 
 Stockton; and concludes with stating that until this rank is so ad 
 justed, I would have to report and receive orders, as heretofore, 
 from Commodore Stockton. Now all this, I am advised by counsel, 
 is both law and reason; and to prove this law, and this reason, is 
 now my duty before this court. 
 
 I proceed to do it: 
 
 First. It shows that there was a question of rank admitted by 
 General Kearny to be depending between himself and Commodore 
 Stockton. He wished to settle it by giving me a contradictory 
 order. I declined the responsibility, and I think rigntfully. For, 
 in the first place, it is not for the subordinate to decide between 
 his superiors. He has no legal power to do so; no legal power to 
 require submission from the one decided against; and if he used 
 physical force, it might indeed be a case of mutiny, and that in its 
 proper sense of a military rebellion. Besides, decide which way 
 he might, his danger would be the same. Having no right or power 
 to decide between them my duty being passive and not active 
 the only safe or legal course open to me was to remain as I was, 
 reporting to, and receiving orders from, Commodore Stockton. I 
 considered the question to lie between the two superiors, and that 
 seems to be their own opinion of it, from their correspondence at 
 the time, (16th and 17th of January.) The concluding words of 
 General Kearny's letter to Commodore Stockton, of the 17th of 
 January (eighth day of the trial) are express to that point. Those 
 words are too material to paraphrase or put off with a reference; 
 they are thes^e: 
 
 u jLnd as I am prepared to carry out the Presidents instructions 
 to me, which you oppose, I must, for the purpose of preventing a 
 
30 
 
 collision between us, and possibly to prevent a civil war IN CONSE 
 QUENCE of it, remain SILENT for the PRESENT, leaving with YOU the 
 great RESPONSIBILITY of doing THAT for which you have no author 
 ity , and PREVENTING ME from* complying with the Presidents OR 
 DERS. JJ 
 
 This extract and the whole cotemporaneous correspondence be 
 tween the two superior officers, beginning at San Diego when I was 
 on the march from Monterey, shows that the contest was between 
 them; and it shows also the serious point at which it had arrived. 
 The time of writing the letter, from which this extract is taken, is 
 now the material point, and that was sufficiently ascertained on 
 the cross-examination of General Kearny on the eighth day. It 
 was ascertained to have been written after my refusal to obey Jiirn 
 against Commodore Stockton The conclusion is inevitable. That 
 refusal prevented the collision and the civil war which the letter 
 mentioned, as being for the present prevented. I prevented it. 
 My reward has been to have the war directed against myself, and 
 to be tried for capital and infamous crimes, with base and sordid 
 motives attributed to me. 
 
 The question now is disobedience of orders the order not to re 
 organize the California battalion being the specification. 
 
 In the British service, from whose rules and" articles of war our 
 own are copied, and where there is a judge advocate general to 
 direct court martial proceedings with ^uniformity, the character or 
 qualities of the order, disobedience to which is criminal, are already 
 defined. At page 89 of Hough, (edition of 1825,) is found this defi 
 nition of such an order: 
 
 "In the absolute resistence of, or refusal of obedience to, a pre 
 sent and urgent command, conveyed either orally or in writing^ 
 and directed to be obeyed with promptitude, by the non-compli 
 ance with which some immediate act necessary to be done might 
 be impeded or defeated, as high an offence is discoverable as can 
 well be contemplated by the military mind; inasmuch as the prin 
 ciple which it holds out, would, if encouraged or not suppressed by 
 some heavy penalty, forbid or preclude a reliance on the execution 
 of any military measure. It is this positive disobedience, there 
 fore, evincing a refractory spirit in the INFERIOR, an active oppo 
 sition to the commands of a SUPERIOR, against which it must be 
 supposed the severe penalty of the article is principally directed." 
 
 From this definition of the kind of order which the rules and ar 
 ticles of war contemplate, it is clear that it is not every order, and 
 merely because it is an order, given by a superior to an inferior, 
 that entitles itself to implicit obedience. On the contrary it must 
 have certain indispensable requisites to entitle itself to that obedi 
 ence; and among these are: 1st, legality; 2d, necessary for the 
 public service; 3d, urgent; by the non-compliance with which 
 some immediate act necessary to be done is defeated or impeded; 
 and that the disobedience must be of a kind to evince a refractory 
 spirit. 
 
 I have to answer that the order given by General K. possessed 
 none of these requisites, and that disobedience drew after it no in- 
 
31 
 
 jury to the public service, and that my refusal to obey it was not 
 in a refractory spirit. 
 
 1. It was not a legal order, and this for reasons which I shall 
 fully show in the proper place. 
 
 2. It was a mere experimental order of contradiction, to try a 
 question of rank, and against the public service, as the state of the 
 battalion required it to be re-organized, the time for which many 
 of the men and officers were engaged having expired, and to give 
 it a major in the place of myself, made governor. 
 
 3. So far from being for the public service, it would seem from 
 the sentence in General Kearny's letter to Commodore Stockton of 
 the 17th of January, (already quoted,) in relation to a collision be 
 tween them, and possibly a civil war, that the battalion was want 
 ed for forcibly asserting his right to the governorship against Com 
 modore Stockton. The letter can have no other meaning; and this 
 interpretation of it is, moreover, borne out by his letter of the same 
 date to the department, by his testimony before the court, and by 
 the testimony of Lieutenant Emory. 
 
 4. The battalion was not, and never had been, under the orders 
 of General Kearny; was not such troops as his instructions con 
 templated, and several of its officers were from the navy, over 
 whom he could have no control. 
 
 5. General Kearny was, at the time of giving the order, suspended 
 from the command of the forces at that place by order of Governor 
 Stockton. 
 
 6. If not suspended at the time he wrote and sent the order, then- 
 he was himself in mutiny against his own commander, and endea 
 voring to induce me " to join" in it, and thus was in the commis 
 sion of the double offence of mutiny himself, and endeavoring to 
 make another join him in it. 
 
 7. General Kearny has not shown for what purpose he gave the 
 order against re-organization, but it appears evident it was for an 
 unlawful purpose, to wit^ for the purpose of keeping the battalion 
 together in his own hands to be used against Gov. Stockton. On 
 his cross-examination (eighth day) he seems to have known nothing 
 about what he was doing in giving this order, on which I am now 
 doubly prosecuted. To the question: "Did you know what was 
 the nature of the re-organization commanded by Governor Stock 
 ton, of the battalion under Lieutenant Colonel Fremont, and for 
 bid by youT' he answered, "I do not. I learned that Commo 
 dore Stockton was about to re-organize that battalion, and I forbid 
 it." Thus, a battalion raised, officered, commanded, and organ 
 ized by Governor Stockton, and being a part of his forces for the 
 conqust, preservation, and government of California, was forbid 
 to be re-organized by General Kearny, without knowing what the 
 actual organization was, or what the re-organization would be. 
 He heard something was to be clone he knew not what and he 
 forbid it. Surely, he should tell what purpose he had in view. 
 
 8. It was an order that I could not obey without rebelling against 
 the authority by which the battalion was raised and from which I 
 held my commission as its commander. 
 
32 
 
 From all this it appears that the order hot to re-organize the bat 
 talion has none of the requisites of an order entitled to obedience; 
 that it was not a lawful order; that it was not intended for the 
 public service; that there was no necessity for it; that no injury to 
 the public service accrued from non-obedience to it; that the re 
 fusal to obey it, so far from being in a refractory spirit, was a mere 
 determination to remain as I was, and as I had been, under Com 
 modore Stockton's command, until my superiors settled their own 
 dispute. And I am now advised by counsel to say that that deci 
 sion was legally right. 
 
 In opposition to all this, General Kearny urges, in support of his 
 right to command me, first, his rank as brigadier general; secondly^ 
 his instructions to take command of the troops organized in Cali 
 fornia; thirdly, that I had put myself under his command by re- 
 pprting to him on the 13th of January. I deny all three of his 
 positions: 
 
 1. As brigadier general he had no right to give me any order in 
 relation to Commodore Stockton's forces. He admits this with 
 respect to the sailors and marines; also, with respect to that part 
 of the battalion which was detached, anil under the command of 
 Captain Gillespie; it was equally illegal to interfere with that part 
 of the commo(^>re's forces whidi was under my command. 
 
 2. His instructions to take command of the troops organized in 
 California did not apply to those raised by the navy; they did not 
 apply to such forces as I commanded, and of which nothing was 
 known at Washington when the instructions were given. 
 
 3. His pretension that I put myself under his command by re 
 porting to him, and on which he mainly relies, is as unfounded as 
 all the rest, but requires a more detailed and precise examination. 
 He lays great stress upon this alleged reporting, and shall have the 
 full benefit of his own testimony in support of his pretension. 
 In his direct examination, he said: " About the 14th of January, 
 1847, I received from Lieutenant Colonel Fremont a communication 
 dated the day previous, upon the march, and dated January 13, 
 1846, (presumed to be written by mistake for 1847,) and which I 
 furnished, together with the charges, to the adjutant general." 
 
 The paper was read, as follows: 
 
 ON THE MARCH, January 13, 1846. 
 
 DEAR SIR: I have the honor to report to you my arrival at this 
 place with 400 mounted riflemen and six pieces of artillery, in 
 cluding among the latter two pieces lately in the possession of the 
 Californians. Their entire force, under the command of Don An 
 dres Pico, have this day laid down their arms and surrendered to 
 my command. 
 
 Very respectfully, your obedient servant, 
 
 J. C. FREMONT, 
 Lieutenant Colonel U. S. army, and military 
 
 commandant of the territory of California. 
 Brigadier General S. W. KEARNY. 
 
33 
 
 On the day of the receipt of that report, (viz: of the 13th Jan 
 uary,) Lieutenant Colonel Fremont, at the head of a battalion of 
 volunteers, entered the city of Los Angeles*. On the 16th January 
 an order was sent to him, relatipg to this battalion, by my direc 
 tion, and signed by Lieutenant Emory, a copy of which I have fur 
 nished, and which I can identify if shown to me. 
 
 This is a copy of the order furnished to him by Lieutenant 
 Emory. 
 
 The paper was read, as follows: 
 
 HEAD-QUARTERS, ARMY UNITED STATES, 
 
 Ciudad de Los Angeles, January 16, 1847. 
 
 Ey direction of Brigadier General Kearny, I send you a copy of 
 a communication to him from the Secretary of War, dated June 18, 
 1846, in which is the following: " These troops, and such as may 
 be organized in 'California, will be under your command." The 
 general directs that no change will be made in the organization of 
 your battalion of volunteers, or officers appointed in it, without his 
 sanction or approval being first obtained. 
 Very respectfully, 
 
 WM. H. EMORY, 
 
 Lieutenant and Acting Assistant Adjutant General. 
 Lieutenant Colonel J. C. FREMONT, 
 
 Mounted riflemen, commanding 
 
 battalion California volunteers. 
 
 On his cross-examination, General Kearny thus testifies in rela 
 tion to that battalion, and the brief note which he treated as a mili 
 tary report for duty: " The California battalion was under my com 
 mand from the time of Lieutenant Colonel Fremont 7 s reporting to 
 me on the 13th of January." He, therefore, swears to the fact of 
 my reporting to him, and also b<*ing under his command; and this 
 double swearing becomes the corner-stone of his accusation. Twice 
 afterwards he swears to the same effect, thus: " / was a brigadier 
 general in the army, and the accused was a lieutenant colonel in it. ' 
 I was in command of the battalion at the time" (to wit: 16th and 
 17th.) And again: u I made no attempt to get the command; the 
 battalion was already under me." 
 
 In this way, and by dint of his own swearing, he gets me, as he 
 swears, under his command, and thereby acquires the right to give 
 me orders, with the resulting consequences of mutiny and disobe 
 dience if I did not obey them; and all these rights and conse 
 quences flowing from the word report, as found in my note of the 
 13th January to him. 
 
 Now let us see with how much truth and justice this is done. 
 From the testimony in chief, at the opening of the trial, quoted 
 above, it would seem that, of my own head, on the 13th day of 
 January, I reported myself and battalion, in -the military sense of 
 the word, to General Kearny for duty; that after thus reporting, 
 and without any thing else passing upon the subject, and after I 
 
 3 
 
34 
 
 had voluntarily put myself and my battalion under the command of 
 General Kearny, I did, on the 17th, refuse to obey the order of 
 General Kearny, in relation to said battalion, and thus became 
 guilty of two crimes mutiny, for^ which I might have been law 
 fully killed on the spot; and disobedience of orders, for which I 
 may be sentenced to be shot or cashiered, or otherwise punished 
 "by this court. 
 
 The first words of the testimony imply voluntary communication. 
 The words are: " about the 14th of January, 1847, I received from 
 Lieutenant Colonel Fremont a communication, dated the day pre 
 vious, upon the march, &c., which I furnished, together with the 
 charges to the adjutant general." This testimony presents a volun 
 tary act on my part, a movement of my own head, uninfluenced by 
 any previous act of General Kearny; and so stood the case on the 
 direct examination, on the first day of the trial. 
 
 On the seventh day the cross-examination reached this point, 
 and the recorded testimony shows as follows: 
 
 Question. Did you, at Los Angeles, from the 10th to the 13th of 
 January inclusive, address notes to Lieutenant Colonel Fremont r 
 and if so, how many, and for what object? 
 
 Answer. Between those dates I addressed, I think, three commu 
 nications to Lieutenant Colonel Fremont. * * The ob 
 ject of my communication was to inform Lieutenant Colonel Fre 
 mont of our being in possession of Los Angeles, and having a strong 
 force, &c. 
 
 Question. Were they official orders, or familiar notes of infor 
 mation in regard to impending military events, and desiring infor 
 mation of Lieutenant Colonel Fremont's movements -in return? 
 
 Answer. They were what are termed semi-official, written in a 
 familiar manner, and of which I have no copies. I keep a copy of 
 all my official communications. 
 
 Question. Did either of those fiotes give the information that 
 Governor Stockton was at Angeles? 
 
 Answer. I have no recollection of it. 
 
 Question. Did either of those -notes, dated at 6 o'clock in the 
 evening of the 6th of January, contain these words: " Dear Fre 
 mont: I am here in possession of this place, with sailors and ma 
 rines. We met and defeated the whole force of the Californians 
 the 8th and 9th. They have not now to exceed 300 men concen 
 trated. Avoid charging them, and come to me at this place. Ac 
 knowledge the hour of receipt of this, and when I may expect you. 
 Regards to Russell?" 
 
 Answer. I cannot answer, but I think it highly probable it did. 
 As I stated before, I kept no copies of those semi-official papers. 
 
 Question. Did you address the accompanying letter to Lieutenant 
 Colonel Fremont, and at the time of its 'date? 
 
 Answer. That is my writing and that is my note. 
 
 The letter was read, as follows: 
 
35 
 
 PlJEBLA DE LOS ANGELES, 
 
 Sunday^ January 10, 1847 4 p. m. 
 
 DEAR F&EMONT: We are in possession of this place, with a force 
 of marines and sailors, having marched into it this morning. Join 
 us as soon as you can, or l^t me know if you want us to march to 
 your assistance. Avoid charging the enemy; their force does not 
 exceed four hundred, perhaps not more than three hundred. Please 
 acknowledge the receipt of this, and despatch the bearer at once. 
 Yours, 
 
 S. W. KEARNY, 
 Brigadier General U. S. army. 
 Lieut. Colonel J. C. FREMONT, 
 Mounted rifles^ com., fyc. 
 
 Question. Did you also address this one. to him, and at the time 
 of its date 1 
 
 The witness, having examined the paper, said: That is my writ 
 ing, and that is my note. 
 
 It was read, as follows: 
 
 ClUDAD DE LOS ANGELES, 
 
 , January 13, 1847 12 o'c/oc/e, noon. 
 
 DEAR FREMONT: We are in force in this place sailors and ma 
 rines. Join us as soon as possible. 
 
 r We are ignorant of your movements, and know nothing of you 
 further than your armistice of yesterday. 
 Yours, 
 
 S. W. KEARNY, 
 
 f Brigadier General. 
 
 Lieutenant Colonel FREMONT. 
 
 Question. Did you also address .this to him, and at the time it 
 bears date 1 
 
 Answer. That is my writing and that is my note. 
 
 It was read, as. follows: 
 
 PUEBLA DE LOS ANGELES, 
 
 , January 12, 1847 Tuesday 6, p. m. 
 
 DEAR FREMONT: I am here in possession of this plaee, with sai 
 lors and marines. We met and defe'ated the whole force of the 
 Californians, the 8th and 9th. They have not now to exceed 300 
 men concentrated. Avoid charging them, and come to me at this 
 place. 
 
 Acknowledge the hour of receipt of this, and when I may expect 
 you. Regards to Russell. 
 Yours, 
 
 S. W. KEARNY, 
 
 Brigadier Geieral. 
 Lieutenant Colonel FREMONT, 
 
 Question. Did you also write this one to him, and were the first 
 
36 
 
 two of the five words (do not charge the enemy) underscored by 
 you, as they now appear ? 
 
 Answer. That is my writing, and that is my note, and though 1 
 have no recollection of underscoring these words, I have no doubt 
 but I did so. 
 
 The note was read, as follows: 
 
 ClUDAD DE LOS ANGELES, 
 
 t January 13, 1847 2, p. m. 
 
 DEAR FREMONT: We have been here since the 10th. I have plen 
 ty of marines and sailors. We know nothing of you, except your 
 armistice of yesterday, signed by yourself. I have sent several 
 letters to you, and fear they have been intercepted, as I have re 
 ceived no answer. Come here at once, with your whole force, and 
 join us; or if you cannot, let me know it, and I will go to you. 
 The enemy cannot possibly have near you more than 300, most pro- 
 baby not more than 150 men. Acknowledge the hour of receiving 
 this, and send back the bearer at once, and write but little, as it 
 may get into the hands of the enemy, instead of mine. 
 
 We defeated the enemy on the 8th and on the 9th, during our 
 march. Since then they have been much scattered, and several, no 
 doubt, gone home. 
 
 I repeat, we are ignorant of every thing relating to your com 
 mand, except what we conjecture from your armistice, signed by 
 yourself. Success to you! 
 Yours, 
 
 S. W. KEARNY, 
 
 Brigadier General. 
 
 Do not charge the enemy. 
 
 / 
 
 Lieutenant Colonel J. C. FREMONT, 
 Mounted rifles, Sec. 
 
 This is what is s"hown by the cross-examination! The note 
 of the 13th, so far from being voluntary, that it was actually 
 pulled and dragged out of me by General Kearny, by dint of re 
 peated, urgent, solicitous, and affectionate notes, all requiring 
 information' of my position and movements, and all concealing 
 the fact that Commodore Stockton was with him at Los Angeles, 
 and his commander-in-chief. " Dear Fremont," four times re 
 peated, and four applications for informations of him' show the 
 character of the notes sent and the object of sending them; that 
 they were familiar notes of information, such as are written in all 
 services and between officers of all ranks, and which are used for 
 no purpose in the world except for the sake of the information they 
 contain. But, while the notes show this, the cross-examination 
 was-impotent to gain the same knowledge, either of their number, 
 object, or contents. To the question, how many of these notes? 
 he answer three, he "thinks." Not being in the habit of destroy 
 ing originals, I produce him four. To the question, with wnat 
 object? he replies that it was to give him (myself) information of 
 
37 
 
 his (General Kearny's) being in possession of Los Angeles, &c., 
 c. The notes being read show that, in addition to that informa 
 tion to me, they desired information from me also: To the inquiry 
 whether either of these notes gave information that Governor 
 Stockton -was at Los Angeles] the answer is, U I have no recollec 
 tion of it." 
 
 The notes themselves being read, each one shows that the pre 
 sence of Governor Stockton was not even hinted, fhe same four 
 notes tell something else very incompatible with the testimony of 
 a previous day; they tell Lieutenant Colonel Fremont the force 
 gone against him may be 300 or 400 men. In the previous swear 
 ing are these words: "And a small party under Don Andreas Pico 
 which party I have never understood to have exceeded fifty or sixty 
 men went to Couenga, and entered into capitulation with Lieu 
 tenant Colonel Fremont." 
 
 From these notes, then, the great fact was brought out that the 
 communication, presented as a voluntary act, was extracted from 
 Lieutenant Colonel Fremont by General Kearny himself; that, in 
 stead of being a military reporting for duty, it was a reporting for 
 information only; that, instead of .being an official communication, 
 it was a familiar private note, in answer to familiar, private, and 
 apparently, most affectionate notes. 
 
 Upon their face they contradict the swearing of General Kearny, 
 and it is further contradicted by facts and circumstances drawn 
 from himself, or from authentic sources. The direct testimony at 
 the opening of the trial, says: " On the day of the receipt of that 
 letter, &c., &c v , Lieutenant Colonel Fremont, at the head of a bat 
 talion of volunteers, entered the city of Los Angeles." Now, all 
 the testimony agrees (and such is the fact) that, on my entrance 
 into Los Angeles with my battalion, I went direct to the quarters 
 assigned it by Governor Stockton through Colonel Russell; then re 
 ported in person to Governor Stockton, and afterwards called on 
 General Kearny. 
 
 That note, so extracted from me, and so perverted, did not fetch 
 itself to Los Angeles. Some person must have brought it, and did; 
 and that person was Colonel W. H. Russell; and he has given an 
 account of his mission, and of his conversation with General 
 Kearny, wholly incompatible with the present imputed intention of 
 that note. On the 37th day of that trial, that witness (Colonel 
 Russell) was introduced, and the second question put to him (the 
 first being only to show his rank'in the California battalion) was 
 this: "Were you sent to Los Angeles, from the plains of Couenga, 
 by Lieutenant Colonel Fremont? If so, at what time, and for what 
 purpose?" And the answer was: u I was sent by Lieutenant Col 
 onel Fremont from the plains of Couenga, about the 13th of January, 
 1847, for the purpose of ascertaining who was in chief command, 
 and to make report of the capitulation made on that day to 
 whomsoever I should find in the chief command at Los Angeles." 
 The next question: "Will you state how you executed that mis 
 sion?" Answer. "I went to the quarters of General Kearny first, 
 and inquired of him whether his" arrival in the country had super- 
 
38 
 
 seded Commodore Stockton, who, before, had been recognized as 
 chief commander. From General Kearny I learned that Comm'o- 
 dore Stockton was still in chief command, and by him I was di 
 rected to make my report to the commodore." This was the 
 testimony of Colonel R. on that point on his examination in chief. 
 On the cross-examination (39th day) the following questions were 
 put by the judge advocate: 
 
 " Do you recollect General Kearny told you expressly that he 
 was serving under Commodore Stockton, or did he say anything 
 more explicit than, as was said by you, that Commodore Stockton 
 was in chief command, and you would carry your report of the 
 capitulation to him'? 
 
 Answer. He told me distinctly that he was serving under Com 
 modore Stockton, and had been doing so from San Diego. 
 
 Question by judge advocate. Was Captain Turner present at that 
 interview? 
 
 Answer. I am not positive, but believe he was." 
 
 On the fortieth day of the trial, the court took up the cross-ex 
 amination; and, on this point, with the following results: 
 
 "Question. When you were sent to Los Angeles, to ascertain who 
 was in^ command, had you any orders what to do if you found the 
 chief command claimed by both Commodore Stockton and General 
 Kearny. 
 
 Answer: My instructions from Lieutenant Colonel Fremont were 
 to proceed to Los Angeles, and carefully to inquire as to who w r as 
 in chief command, and to make my report accordingly. No such 
 contingency was contemplated, I think, by Lieutenant Colonel Fre 
 mont, when he dispatched me on that mission, as the command be 
 ing claimed by them both. 
 
 Question by a member. Why did you first report to General 
 Kearny rather than to Commodore Stockton? 
 
 Answer. I bore a letter to General Kearny from Lieutenant Col 
 onel Fremont, in ackowledgment of one received by Lieutenant 
 Colonel Fremont from General Kearny, and for the further reason 
 that we were totally ignorant of "the object of General Kearny's 
 being in the country, and my orders from Lieutenant Colonel Fre 
 mont were that I should ascertain all about it. 
 
 Question by the court. State all the conversation which passed 
 between you and Lieutenant Colonel Fremont on the subject of 
 choice of commanders, after you returned and reported to him the 
 result of your visit to Los Angeles'? 
 
 Answer. I met Lieutenant Colonel Fremont at the head of his 
 battalion, on the morning of the 14th of January, (as I stated in 
 my chief examination,) about five or six miles from Los Angeles, 
 and told him I had had much conversation with both General Kearny 
 and Commodore Stockton, touching their respective positions in 
 the country. That I was satisfied, from what had occurred, that 
 General Kearny was a better friend of his than Commodore Stock 
 ton; but$ from General Kearny's own admissions, I regretted to 
 have to give it as my opinion that* we should have to look to -Com 
 modore Stockton still as commander-in-chief. That I found Com- 
 
39 
 
 modore Stockton exercising the functions of commander-in-chief, 
 and submitted to implicitly, as I thought, by General K^earny. 
 This was the substance of my communication to Lieutenant Colonel 
 Fremont; and he, I think, with equal reluctance, at the time, came 
 to the same conclusion." 
 
 This is the testimony of the witness who bore the note which is 
 represented here, (and made the foundation of the prosecution 
 against me,) as a military report, to put myself and my battalion 
 under the orders of General Kearny, and actually so placing myself 
 and battalion under his orders. 
 
 From all the testimony of Colonel Russell it seems clear that 
 General Kearny undertook to gain me over to his side by flatteries, 
 by offering the governship of California, and by exciting resent 
 ment against Commodore Stockton* and failing by all of these 
 means to accomplish that purpose, he tried the experiment of an 
 order upon me, with the menace of "unquestionable ruin," which 
 ruin, it would seem, he has been laboring ever since to effect. 
 
 That this construction was not put upon my note at the time it 
 was received, seems clear from official cotemporaneous acts of Gen 
 eral Kearny himself. Thus, on the 14th day of January, he writes 
 to the War Department, from Los Angeles, that " this morning 
 Lieutenant Colonel Fremont, of the regiment of mounted riflemen, 
 reached here with 400 volunteers," &c., &c. No word of reporting 
 to him, 6r placing myself and battalion under his command. Surely 
 that was the time to have communicated to the War Department 
 such an essential piece of intelligence. In the concluding part of 
 the same letter he says: " On their arrival (troops from New York 
 and New Mexico) I shall, agreeably to the instructions of the 
 President of the United States, have the management of affairs in 
 this country, and will endeavor to carry out his views in relation to 
 it," words which necessarily mean that he did not consider himself 
 entitled to command until the arrival of those troops, or else that 
 he intended to avail himself of those troops to obtain command. 
 
 The letters of the 16th, and 17th of January, from General Kearny 
 to Commodore Stockton, are significant at this point. 1. They are 
 totally silent, on the subject of my having placed myself and the 
 battalion under his command. 2. They show the whole contest, up 
 to the 17th, to be between the two superiors. 3. The letter of the 
 17th shows a shifting of the grounds of his claim to command in 
 California, basing it on his victories f the 8th and 9th, and the 
 capitulation of the enemy to me on the 13th. The words of the 
 letter, significant of this change, are: ""As in consequence of the 
 defeat of the enemy on the 8th and 9th instant by the troops under 
 my command, and the capitulation entered into on the 13th instant, 
 by Lieutenant Colonel Fremont with the leaders of the Californians, 
 in which the people under arms and in the field agree to disperse 
 and to remain quiet and peaceable, the country may now, for the 
 first time, be considered as conquered and taken possession of by 
 us, and as I am prepared to carry out the President's instructions 
 to me, which you oppose, I must, for the purpose of preventing a 
 collision between us, and possibly a civil war in consequence of it , 
 
40 
 
 remain silent for the present, leaving with you the great responsi 
 bility of doing that for which you have no authority, and prevent 
 ing me from complying with the President's orders." 
 
 The value of this testimony, which would make me to have re 
 ported to General Kearny, and placed myself and battalion under 
 his command, must now be understood. I undertake to say there 
 is no authentic modern instance of a note, so innocent in itself and 
 extracted from the writer under such circumstances, so totally per 
 verted from its meaning, and made the foundation of such a pro 
 secution as I have endured. 
 
 If men are to be capitally and infamously tried for such a note ? 
 no one is safe in writing. 
 
 I am charged here with a great military crime. I should have 
 been guilty, not only of it, but of an inexcusable breach of faith, 
 ii I had made a report of myself and battalion to General Kearny, 
 and so placed under the command of that officer the troops raised 
 by the means and authority of Commodore Stockton, and by him 
 entrusted, to me. 
 
 I now close this defence to specification first, of charge two, for 
 disobedience, of lawful orders. 
 
 The second specification, under the head of mutiny, is for raising 
 and attempting to raise troops, on the 25th of January, 1847; and 
 is in these words: 
 
 { :i Specification 2. In this, that he, Lieutenant Colonel John C. 
 Fremont, of the regiment of mounted riflemen, United States army, 
 being in command of a battalion of volunteers organized in Cali 
 fornia, which were placed by the aforesaid orders of the Secretary 
 of War, of June 18, 1846, under the command of Brigadier General 
 Kearny, did issue an order to Captain J. K. Wilson, at Angeles, 
 January 25, 1847, in the following words, to wit: 
 
 ANGELES, January 25, 1847. 
 
 SIR: You are hereby authorized and directed to raise a company 
 of men to constitute the second company of artillery in the Cali 
 fornia service, and for that purpose are detached from your present 
 command. 
 
 You will please report the number you may be able to enlist 
 with as little delay as possible. You are authorized to enlist the 
 men for three months, and to promise them as compensation $25 
 per month. 
 
 Respectfully. , 
 
 J. C. FREMONT, 
 Lieut. Col. commanding California force in U. S. service. 
 
 To Captain S. K. WILSON, 
 
 Light Artillery. 
 
 "Thereby raising and attempting to raise troops, in violation and 
 contempt of the lawful command aforesaid of his superior officer, 
 Brigadier General Kearny, of date January 16, 1847, and thereby 
 
41 
 
 acting openly in defiance of, and in mutiny against, the authority of 
 his superior officer aforesaid, by raising and attempting to raise 
 troops, and by proclaiming himself to be, and assuming to act as 
 commander of the United States forces in California." 
 
 The same act is specification No. 2, in charge, for disobedience 
 of orders the orders charged to have been disobeyed being the 
 order of January 16, 1847, against the reorganization of the Cali 
 fornia battalion. 
 
 I will consider both of these specifications together, and arrange 
 the matter of defence under these general heads: 1. That I was, at 
 that time, governor and commander-in-chie: in California. 2. That 
 General Kearny had no right to command the battalion at that time. 
 3. That the order of the 16th of January, 1847, besides being ille 
 gal in itself, had no relation to any other change in the battalion 
 than the one intended at the time it was given. 
 
 1. That I was then governor and commander-in-chief in Cali 
 fornia is proved by the testimony of Commodore Stockton, and 
 the production of the original commission; and his right to be 
 stow that commission upon me resulted from his own right to con 
 stitute himself governor. Both acts were done under the law of 
 nations; and by virtue of the right ojf conquest; by virtue of the 
 orders and instructions of the President of the United States, 
 charging the naval commanders in the Pacific ocean, exclusively, 
 with the conquest and ciril government of California, until relieved 
 under the instructions of the 5th of November,' 1846. These instruc 
 tions did not arrive until after the alleged commission of the act of 
 mutiny and disobedience now under examination; and, when they 
 did arrive, were never communicated to me at all. 
 
 I am advised by counsel, that the appointment of himself as gov 
 ernor, by Commodore Stockton, was a valid appointment under the 
 law of nations; and that upon the same principle, his appointment 
 of myself as his successor was equally valid; and that in neither 
 case was the approval of the President of the United S.tates ne 
 cessary to the validity of the appointment, though each revocable 
 by him at his pleasure; and therefore proper to be made known to 
 him. This I am advised is the law; but being now prosecuted for 
 mutiny and for disobedience of orders, in assuming and usurping 
 the governorship of California, and it being the President alone 
 who could order my trial in this case, (accused as I am by my com 
 manding general,) it becomes material to show that this appoint 
 ment, and the intention to make it long before it was made, was 
 duly communicated to him, and, while not disapproved, was im- 
 pliedly sanctioned, and never revoked. For the fact of the com 
 munication of the intention to appoint me his successor, I refer to 
 Governor Stockton's official despatch of August 28, 1846, from Los 
 Angeles, sent in by Mr. Carson; and for the fact of his communi 
 cating the fact of his having appointed me, I refer to his official 
 despatch of January 22, 1847, from San Diego. The first of these 
 despatches arrived by the hands of Mr. Fitzpatrick early in No 
 vember, 1846, and their general contents were noticed by the Presi 
 dent in his annual message of December following, and in the re- 
 
42 
 
 ports of the Secretaries of War and Navy, and all in terms of gen 
 eral approval. Passages from this message and these reports have 
 been already quoted, and require no repetition; and from them and 
 from the communication of Governor Stockton's acts as governor, 
 to Congress, at the time by the administration, I assume it to be 
 proved that the intent to appoint me governor was known to the 
 government in November, 1846, and not disapproved by it. The 
 despatch of the 22d January, 1847, was received from Lieutenant 
 Gray, of ^the navy, in the month of April following; and, so far as I 
 can learn, his act was not disavowed in appointing me governor. 
 Even if it was, the disavowal could only operate from the time it 
 would be known to me, which it never was. 
 
 The commission from Governor Stockton was in these words: 
 
 "To all whom it may concern, greeting: Having, by authority of 
 the President and Congress of the United States of North America, 
 and by right of conquest, taken possession of that portion of territory 
 heretofore known as Upper and Lower California, and having de 
 clared the same to be a territory of the United States, under the 
 name of the territory of California, and having established laws 
 for the government of the same territory, I, Robert F. Stockton, 
 governor and commander-in-chief of the same, do in virtue of the 
 authority in me vested, and in obedience to the aforementioned 
 laws, appoint J. C. Fremont, esq., governor and commander-'n- 
 chief of the territory of California, until the President of the U. 
 States shall otherwise direct. 
 
 Given under my hand and seal on this sixteenth day of January, 
 
 r i Anno Domini one thousand eisrht hundred and forty-seven, 
 
 1 SEAL. ,1 />, j T i A 
 
 at the Cmdad de los Angeles. 
 
 R. F. STOCKTON, Governor, #c. 
 
 On this state of facts, I maintain that I was duly and legally 
 .governor and commander-in-chief in California at the time of the 
 act done which is charged as mutiny and as disobedience of 'orders, 
 in the two specifications, under the two charges referred to. 
 
 2. That General Kearny had no right to command the battalion 
 at that time. 
 
 The facts and the arguments in support of this proposition are 
 the same which have been already used in answer to specifications 
 first in both the first charges, with the addition of arguments to 
 show that General Kearny had no more right, at that time, to com 
 mand me, in my governorship of California, than he had to com 
 mand Governor Stockton while in the same office; and that, in fact, 
 this prosecution, in the specifications under consideration, is nothing 
 but a continuation of the contest which began at San Diego with 
 Governor Stockton, and which ought to have been finished with him. 
 
 peneral Kearny claimed authority to command the battalion, 
 first, by virtue of his instructions, and next, by the assumption that 
 I had put myself under his command. I presume this latter ground 
 has been effectually disposed of heretofore. The first one has re 
 ceived some answers, and has others to receive. It has been argued 
 from the beginning from San Diego to this place, and from De- 
 
43 
 
 cember, 1846, to this time that the instructions to General Kearny 
 were conditional: "Should you conquer and take possession of New 
 Mexico arid California, or considerable places in either, you will 
 establish temporary civil governments therein." These instructions 
 are evidently conditional, and only applicable to a country uncon- 
 quered, and without a civil government. On the contrary, before 
 General Kearny left New Mexico he had "positive" (using the 
 word of his order) information that all this was already done, and 
 immediately acted upon that "positive" intelligence, by diminish 
 ing the force with which he had set out. He met Mr. Christopher 
 Carson, bearer of official despatches from Governor Stockton, and 
 of private letters from myself, learned the true state of things from 
 him, turned him back as his guide, reduced "the army of the West," 
 with which he was to conquer California, to an escort for his per 
 sonal safety in travelling through the country, and went on, as the 
 sequel showed, not to execute government orders, already executed 
 by others, but (what is rarely seen in any military service) to take 
 from others the fruits of their toils, hardships, dangers, and victo 
 ries. He took the bearer of despatches, sent by the real conquer 
 ors, to guide him show him the way to the conquered country; 
 before he arrived there, sent for aid from the conqueror, and re 
 ceived it in a handsome detachment, nearly equal to half his force, 
 and after fighting an action with that aid, was four days upon a hill 
 in a state of siege, ff*om which he waS relieved by 215 men sent out 
 by Commodore Stockton to conduct him in to San Diego, where he 
 was safe. This was not the conquest of California, nor was the 
 plain of San Pasqual, or the hill of San Bernardo, the conquest of 
 " considerable places" in that province, so as to give a right to gov- , 
 ern it. The subsequent operations were under the command of 
 Commodore Stockton; and it is because he should appear as con 
 queror, in order to get a right under fris instructions to the gover 
 norship, that the claim has been set i^p by General Kearny to have 
 commanded the troops to Los Angeles, and gained the victories of 
 the 8th and 9th of January, and, thereupon, in conjunction with the 
 capitulation of Couenga, started a new claim to the governorship, 
 on the assumption that he had just conquered the country. This 
 new claim is started in the letter of 17th January, 1847, from Gen 
 eral Kearny to Governor Stockton, and clearly shows his own 
 Views, at that time, of the conditional nature of his instructions. 
 The letter has been quoted. Its effective and applicable words at 
 this point are, "As, in consequence of the defeat of the enemy on 
 the 8th and 9th instant, by the troops under my command, and the 
 capitulation entered into on the 13th instant by Lieutenant Colonel 
 Fremont with the leaders of the Californias, &c., the country may 
 now, for the first time, be considered as conquered, and taken pos- 
 session of by us; and as I am prepared to carry out the President's 
 instructions to me, which you oppose," &c. &c. 
 
 This extract shows General Kearny's own opinions of his in 
 structions at the time he wrote that letter, and that they were 
 conditional upon the fact of conquering and taking possession of 
 the country. It shows his opinion; but, if the facts were not as 
 
44 
 
 he supposed, to wit, that he was commander-in-chief in the 
 actions of the 8th and 9th, and that the country was then, for the 
 first time, conquered and taken possession of; if these facts fail 
 him, as they do, then his new claim to command in California fails 
 also; and Commodore Stockton, as the commander-in-chief on the 
 8th and 9th, becomes a second time the conqueror. That the 
 instructions to General Kearny were intended to be conditional, 
 may well be conceived, from the circumstances under which they 
 were issued, as well as from their terms. 
 
 The navy had been charged, from the beginning of the war, (and 
 before it in anticipation,) with the exclusive conquest, preservation, 
 and government, in California. In giving a military officer orders 
 to go into California to conquer, &c., &c., the contingency that 
 everything required to be done might have been already done, 
 was too obvious to be overlooked, and would naturally be pro 
 vided for in making the military instructions conditional. 
 
 The naval instructions say: "Previous instructions have informed 
 you of the intentions of this government, pending the war with 
 Mexico, to take and hold possession of California. * * * 
 The object of the United States is, under its right as a belligerent 
 nation, to possess itself entirely of Upper California. 
 The object of the United States has reference to ultimate peace 
 with Mexico; and if, at that peace, the basis of the uti possidetis 
 shall be established, the government expects, through your forces, 
 to be found in actual possession of Upper California. * 
 This will bring with it the necessity of a civil administration. 
 Such a government should be established under your protection. 
 * * For your further instruction, I enclose to you a copy 
 of confidential instructions from the War Department to Brigadier 
 General Kearny, who is ordered overland to California. You will 
 also communicate your instructions to him, and inform him that 
 they have the sanction of the President." 
 
 These instructions were not received by Commodore Stockton, 
 but were anticipated by him, and this anticipation obtained for 
 him the express approbation of the President. The despatch of 
 the 5th November, from the Secretary of the Navy to the commo 
 dore, contained this clause in reference to his operations in Cali 
 fornia: " And it is highly gratifying that so much has been done in 
 anticipation of the orders which have been transmitted." 
 
 This was written near four months after the transmission of the 
 orders of July 12, and is a full ratification of all that had been done 
 in anticipation of them. 
 
 But a higher view remains to be taken of the conditional char 
 acter of the instructions to General Kearny, a view which involves 
 their absolute repeal and nullity, unless understood conditionally; 
 and I am advised by counsel that even that understanding of them 
 cannot save them from the fate of total abrogation until subse 
 quently revived by the instructions of the 5th of November, 1846. 
 A few dates and facts establish this view. The instructions to 
 General Kearny, on which he relies for his authority, are dated the 
 3d and 18th of June, 1846. Now, it so happens that, on the 12th 
 
45 
 
 day of July, in the month fallowing, instructions of the most 
 peremptory character were despatched to Commodore Sloat to con 
 quer, hold, and govern California, and to let General Kearny know 
 of these instructions and that they had the sanction of the Presi 
 dent. Here are extracts from the orders to Commodore Sloat- 
 and, although they did not reach his hands, nor those of his suc 
 cessor, Commodore Stockton, until after the country was con 
 quered, yet, I am advised to say, their effect is the same upon this- 
 prosecution. This is not the case of an officer prosecuted for not 
 obeying instructions, in which case f it must be shown they came to 
 his hands; but it is a prosecution against me, as successor to Gov 
 ernor Stockton, for doing what the instructions commanded- In 
 this case, the anticipation of the orders is an additional merit in 
 complying with them; and such is the case with the orders in 
 question. 
 
 These instructions are near a month later than those to General 
 Kearny, and not only especially confide the conquest, preservation, 
 and civil government of California to the naval commanders, but 
 require the naval forces to hold the country till the peace, and 
 direct General Kearny to be informed accordingly; and further 
 informed that all this instruction to the naval commanders had the 
 sanction of the President. 
 
 I, with the battalion I commanded, was part of the naval force 
 to which this duty was confided. (Commodore Stockton's testi 
 mony, 37th day.) This order remained in force until the instruc 
 tions of the 5th of November arrived in California, which was 
 not until the 13th day of February, 1847, AND WHICH WERE NEVER 
 
 COMMUNICATED TO ME, AND OF WHICH I REMAINED TOTALLY IGNORANT 
 
 TILL SINCE THE COMMENCEMENT or THIS TRIAL. Neither General 
 Kearny, Commodore Shubrick, or Commodore Biddle, communi 
 cated them to me, although I was then governor and commander- 
 in-chief in California, under the commission of Commodore Stock 
 ton, to whom the instructions of the 5th of November were 
 addressed; nor were they communicated to Commodore Stockton 
 himself until more than a month after they had been received. 
 They were evidently concealed from me, for a purpose not yet ex 
 plained. By these instructions the military and civil duties, con 
 fided to the navy, were transferred to the commanding officer on 
 land; another proof that the land officer did not then possess them, 
 and that officer was specially named as General Kearny or Colonel 
 Mason. 
 
 The instruction says: " The President has deemed it best, for the 
 public interests, to invest the military officer commanding with the 
 direction of the operations on land, and with the administrative 
 functions of government over the people and territory occupied by 
 us. You will relinquish to Colonel Mason, or to General Kearny, 
 if the latter shall arrive before you have done so, the entire ron- 
 trol over these matters, and 'turn over' to him all papers neces 
 sary to the performance of his duties. If officers of the navy are 
 employed in the performance of civil or military duties, you will 
 withdraw or continue them, at your discretion, taking care to put 
 
46 
 
 them to their appropriate duty in the squadron, if the army officer 
 commanding does not wish their services on land." 
 
 Until this despatch was received by the naval commanders, those 
 of July the 12th, abrogating those to General Kearny, remained in 
 full force; and it was only by virtue of these orders, of the 5th of 
 November, that he acquired the command, militarily or civilly, in 
 California. And it is in evidence that Commodore Shubrick had 
 received these instructions, of the 12th of July, at the time that 
 General Kearny visited him at Monterey, and had consultations 
 with him, and was sent by him in a ship to Yerba Buena, and that 
 he made known to General Kearfiy, at that time, that th'e naval com 
 manders were charged with the whole conquest, defence and govern 
 ment of California; and that they (General Kearny and Commo 
 dore Shubrick) mutually agreed not to disturb the existing state of 
 affairs until the government had further been heard from. 
 
 It is clear that the instructions to the different branches of the 
 service were not properly consistent, and that concurrences might 
 have arisen under them that would have necessarily produced a con 
 flict of authority; but it is also clear that it was the intent of 
 the government that the right and duty of the navy to conquer, pre 
 serve and govern California should remain complete and entire 
 until the arrival of the instructions of J^ ovember 5th, and that no 
 concurrence did arise that, under the plain interpretation of the 
 army instructions, could justify a collision. AH this is fairly stated 
 by the Secretary of the Navy, Mr. Mason, under the express orders 
 of the President, in a despatch of the 14th of June, 1847, directed 
 to the naval commanding officer on the California station. 
 
 That despatch contains thes'e passages: 
 
 cc The misapprehension between the commanding officers of the 
 army and navy in California, which is mentioned in the letter of 
 Commodore Shubrick, above referred to, must long since have been 
 removed by the very explicit instructions which have since been re 
 ceived in that country. At the commencement of 
 the war with Mexico the United States had no military force in 
 California of any description whatever, and the conquest of that 
 country was from necessity, therefore, devolved exclusively upon the 
 navy. * * The conquest brought with it the necessity of a tem 
 porary civil government, and, on the 12th of July, 1846, Commo 
 dore Sloat was informed that such a government should be estab 
 lished under his protection. Contrary to all expectation, this des 
 patch did not reach California until the arrival there of General 
 Kearny. 
 
 " On the 5th November, 1846, Commodore Stockton was informed 
 that the President has deemed it best for the public interests to 
 invest the military officer commanding with the direction of the 
 operations on land, and with the administrative functions over the 
 people and territory occupied by us. He was alro directed to re 
 linquish to Colonel Mason, or to General Kearny, if the latter 
 should arrive before he had done so, the entire control over these 
 matters, and to turn over to him all papers necessary to the per- 
 
47 
 
 formance of his duties. It v^as believed that even this despatch- 
 might anticipate the arrival in California of General Kearny. 
 
 "SIMILAR instructions were communicated to 'Commodore Stock 
 ton under date of January 14, 1847, and were renewed to Commo 
 dore Shubrick under date of May 10, 1847. A copy of these last 
 instructions, which on this subject are very full and distinct, are 
 herewith enclosed." 
 
 All these despatches were too late. The mischief was all done 
 before they arrived, and they leave the naval officers completely 
 justified, and General Kearny wholly without excuse for attempting 
 to make himself governor in California in a case not contemplated 
 by his instructions, and in which he would have to commence with 
 disorganizing an established civil government before he could begin 
 to organize one. His whole conduct, from the day he met Mr. 
 Carson, was contrary to the intent and meaning of his instructions. 
 He was to conquer California; it was already conquered. He was 
 to establish a civil government; it was already done. He was to 
 lead an army to California; he took only a personal escort. He 
 turned back two-thirds of his dragoons; he should have turned 
 back the whole, and himself with them. He should not have ap 
 plied to Governor Stockton to send him aid to San Pasqual, and to 
 the hill of San Bernardo j ii he intended to contend with him fpr 
 supremacy after he got -there. He should not have attempted to 
 found a claim to the governorship on the victories of the 8th and 
 9th of January, after the refutation of his claim by Commodore 
 Stockton at San Diego. He should not have pretended to have 
 been commander-in-chief on the march to Los Angeles, in order to 
 found upon it a claim to the governorship in right of conquest. 
 He should not, even if the letter of his instructions had borne him 
 out, (which they did not,) have attempted to take the fruits of 
 conquest from those who had conquered the country before he 
 came to it, and without whose helping hand he could not have got 
 to it. 
 
 I have now made clear the right of Governor Stockton, under 
 whom I held the governorship of California at the time of the act 
 done, which is charged in the specifications under examination to 
 be governor himself, upon his own assumption of the office, and 
 afterwards to appoint me his successor; and that these governor 
 ships were valid under the law of nations, until disapproved by the 
 President, or the incumbents in some way lawfully relieved or dis 
 charged. Having done this, I am instructed by counsel to resume 
 my original position, as in the letter of the 17th January, in de 
 claring that all this difficulty in California was a question between 
 my two superiors, which should have been settled by the govern 
 ment between them, and not settled in my person by trying me for 
 mutiny and disobedience against one of them charges to which I 
 might have been well exposed in disobeying the other. And I am 
 further instructed by counsel to renew, and to repeat, in the most 
 solemn manner, the PROTEST heretofore filed in the War Office 
 by them, in my name, against the ILLEGALITY and INJUSTICE 
 of thus trying me for the acts of Commodore Stockton and General 
 
48 
 
 Kearny, or for declining the responsibility of settling their disputes 
 of authority^ 
 
 2. The second head of my defence, in answer to these two spe 
 cifications is, that General Kearny at that time had no right to com 
 mand the battalion to which the order of the 16th of January was 
 applicable. The argument heretofore made on this point, is refer 
 red to without repeating it, to show that this battalion was part of 
 the naval forces under Commodore Stockton, and that it was my 
 duty, as stated in my letter of the 17th of January, to continue to 
 receive orders from him in relation to it. 
 
 3. The third head of my defence to these two specifications, is, 
 that the order of the 16th of January, 1847, besides being illegal 
 in itself, had no relation to any other change in the battalion than 
 the changes intended at the time it was given. This illegality has 
 been heretofore shown, both as being issued without authority by 
 General Kearny, but also because it was in positive violation of the 
 rights of the men, most of whom had engaged for the expedition 
 alone, and that being over, were entitled by their contract, and by 
 law, to their discharge. Many were accordingly discharged, and 
 others engaged, and all for the necessary service of the country, 
 and under my authority as governor and commander-in-chief. The 
 nullity of the order, as being founded on the familiar note of in 
 formation extracted from me by General Kearny, and perverted into 
 a military official report, placing myself and the battalion under 
 his command, has heretofore been shown; and the facts and argu 
 ments adduced on that point are now referred to, without being 
 repeated, as applicable to this order of the 16th of January, at its 
 present reproduction, and as often as it shall be produced hereafter. 
 Illegal and null as it was for the purpose of its issue, it is clear 
 this order had no relation, at the time it issued, to anything but 
 the re-organization then intended, and which resulted from dis 
 charges proper to be made, and promoting Captain Gillespie into 
 my place, I being that day commissioned as governor and com 
 mander-in-chief, to take effect on Commodore Stockton's departure. 
 The circumstances of the order, delivered in the night, limited it 
 to that immediate impending operation. The charges, as preferred 
 by General Kearny, so limited it, he having testified before this 
 court that he preferred but a single charge; (understood to be mu 
 tiny;) that these were not his charges; that they had been changed. 
 This can only mean that he has not extended the order of the 16th 
 of January to subsequent acts -to changes subsequently made in 
 
 the battalion. With this corresponds his testimony before this 
 court, (9th day, near the close,) that he left no orders for me 
 when he left Los Angeles. The question then put to General 
 Kearny on this point was, "Did you leave any orders for Lieu 
 tenant Colonel Fremont, or take leave of him, or give notice to 
 him of your going away, or let him know where you were going?" 
 The answer is, U I did not;" this answer applying categori 
 cally and negatively to all four points of the interrogatory, 
 and establishing the fact that General Kearny left Los An 
 geles without leaving any orders for me, without taking leave of 
 me, without giving me notice that he was going away, and with- 
 
49 
 
 out letting me know where he was going; and I am instructed by 
 counsel to say, that it is carrying the doctrine of constructive crim 
 inality rather too far, (even if General Kearny had been my law 
 ful and acknowledged commander,) to construe into the crimes of 
 mutiny, and disobedience of orders, and of conduct prejudicial to 
 good order and discipline, any act done after he was gone, when I 
 had no possible guide but my own discretion. 
 
 Specification 3, under the charge of mutiny, and also for disobe 
 dience of orders, is, for the order to Louis McLane, esq., of the 
 United States navy, in his character of major of artillery in the 
 California service, to make further enlistments, and to examine 
 into the defences of the country. The answer to this speci 
 fication is the same as heretofore, both with respect to Gen 
 eral Kearny's authority, and my own rights and duties as gov 
 ernor and commander-in-chief in California, and the nullity and 
 inapplicability of "the order of January 16th, 1847. 
 
 Specification 4, under the charge of mutiny, is based on 
 the letter of February 7th, 1847, to Commodore Shubrick a 
 letter which is set out in full in the specification. 
 
 The o-ffence imputed is twofold; first, mutiny, in assuming to be 
 
 Governor; and second, mutiny, in endeavoring to entice Commodore 
 hubrick to countenance and abet me. , 
 
 The letter was written in answer to one from Commodore Shu- 
 brick to me, and I received another in reply; that in reply I will 
 now introduce, to show that at least Commodore Shubrick him 
 self did not look upon' what I had written in the light in which 
 the ingenuity of this prosecution has contrived to represent it. 3 
 
 U. S. SHIP INDEPENDENCE, 
 Harbor of Monterey, February 13, 1847. 
 
 SIR: I have the honor to acknowledge the receipt of your. letter 
 of the 7th instant, and shall detain your courier as short a time as 
 possible for my answer, and will also avail myself of your kind 
 offer to forward despatches to the United States. 
 
 When I wrote ^to you on the 25th ultimo, I was not informed of 
 the arrival of Brigadier General Kearny in California, and ad 
 dressed you as the senior officer of the army in the territory; on 
 the 28th, however, having understood that the general was at Los 
 Angeles, I addressed a similar letter to him. 
 
 On the 8th instant. General Kearny arrived in this harbor, in the 
 sloop-of-war Cyane, and left by the same conveyance on the llth 
 for San Francisco. While the general was here, we consulted 
 fully, as enjoined on me by my instructions, and on him by his, on 
 the measures necessary to be taken by us for the security of the 
 territory of California. 
 
 I am looking daily for the arrival of Commodore Stockton in this 
 harbor, when I shall, of course, receive from him a full account of 
 the measures taken by him while in command of the squadron. 
 
 It is to be hoped that the pleasure of the President of the United 
 States on the subject of the organization of a civil goVernment, 
 and of the measures taken- by Commodore Stockton and yourself, 
 4 
 
50 
 
 may be soon known, and it will give me pleasure at all times to 
 co-operate with the civil government, as well as with the military 
 commander-in-chief, for the peace and security of the territory. 
 
 I regret to say that, not anticipating any unusual draft on them, 
 the funds brought by me are barely sufficient, with the most eco 
 nomical expenditure, to meet the wants of the squadron. 
 
 I am, very respectfully, sir, your most obedient servant, 
 
 W. BRANFORD SHUBRICK, 
 Commander-in-chief U. S. naval force}. 
 
 Lieutenant Colonel FKEMONT, 4ce., "c., fyc. 
 
 The plain deductions of this letter are, that Commodore Shubrick 
 and General Kearny, having met at Monterey, had consulted to 
 gether, compared their several instructions, agreed upon their re 
 spective powers, and arranged the course of action they judged 
 proper. All this appears in the third paragraph. What the course 
 , of action agreed upon was, is to be drawn from the fifth paragraph; 
 and the necessary inference is, that it had been found either not 
 competent or not proper to disturb the existing state of affairs, 
 before u the pleasure of the President' 7 should be further ascer 
 tained. The letter does not bear any other interpretation ; so 
 that, whatever the tenure of my office as governor may have been 
 previously, this amounts, in the legal phrase, to quieting me in 
 possession, by common consent, till such time as the government at 
 home should direct differently or definitively. This is the plain 
 import of the letter, and if anything contrary to it was intended I 
 never heard of it, nor was anything contrary done, till more than 
 two weeks after the contingency reserved (farther instructions from 
 the government) had happened. That I did not misconstrue this 
 letter, as I received it then, and as circumstances justified my con 
 struction of it, is rendered certain by the additional light which I 
 have upon it now. This additional light is found in the despatch 
 of Commodore Shubrick to the government, of even date with the 
 above letter to me. In this despatch is the following: 
 
 " SIR: Since my letters of the 26th, 27th, and 28"th ultimo, no im 
 portant change, so far as I can learn, has taken place in the terri 
 tory. The people seem to be settling down into quiet acquiescence 
 in the change of government. Those best acquainted with their 
 temper and disposition do not apprehend further disturbance of the 
 peace of the country. 
 
 " General Kearny arrived here on the 8th, in the sloop-of-war 
 Cyane; and, after the adoption of such measures as we thought 
 necessary here, I sent him to San Francisco, in the Cyane, to which 
 place I should have accompanied him, but that I am looking daily 
 for the arrival of Commodore Stockton from San Diego, and it is 
 important that I should receive his reports before I go further. 
 
 " You will have learned ere this that an unfortunate difference has 
 taken place between Commodore Stockton and General Kearny, 
 and between the General and Colonel Fremont, growing out of the 
 appointment of Colonel Fremont as civil governor of California by 
 
51 
 
 the commodore, and the refusal of the colonel to acknowledge the 
 authority of the general. 
 
 "I have, as enjoined on me by my instructions, exchanged opin 
 ions with General Kearny, and shall continue to concert with him 
 such measures as may seem best for keeping quiet possession of 
 California. 
 
 " With regard to the civil government of territory, authority for 
 the establishment of which is contained in your instructions to 
 Commodore Sloat, of 12th July last, which I received by the Lex 
 ington, measures have been, in my opinion, prematurely taken by 
 Commodore Stockton, and an appointment of governor made, of a 
 gentleman who, I am led to believe, is not acceptable to the people 
 of California; but as the intention to make the appointment was, 
 I understand, communicated to the President as early as August 
 last, and information -as to his wishes may be soon expected, / have 
 determined to await such information, and confine myself, for the 
 present, to arrangements for the quiet possession of the territory, 
 and for the blockade of the coast of Mexico." 
 
 Now, this is conclusive of Commodore Shubrick's intentions and 
 opinions, his views of his authority, and of the manner he deter 
 mined to exercise it. It is conclusive, that though he was pleased 
 to impute precipitancy to the action of Commodore Stockton, and 
 had been "led to believe' 7 that the appointment made by him was 
 not of the right sort of a person, yet that he did not question its 
 legality, nor the authority for making it. It is also conclusive that 
 whatever doubts he had as to the propriety of the appointment 
 made by Commodore Stockton, he did not feel authorised, even 
 under the powers which he held, to disturb it; or ,at least that he 
 declined to do so. Not to disturb, was to continue; "to await" 
 information from the government, concerning the appointment, was 
 to recognize the appointment in the meantime, and, in effect, (if 
 that had been necessary,) to confirm it. 
 
 Such was the action of Commodore Shubrick after a comparison 
 of his instructions with those of General Kearny, after consultation 
 with that officer; and such was the effect of that action upon my 
 appointment. 
 
 I now proceed to show that, in determining on this course of ac 
 tion, Commodore Shubrick had the agreement and acquiescence of 
 General Kearny. This appears in the official dispatch of the latter, 
 of 15th March, which, after relating his meeting with Commo 
 dore Shubrick at Monterey, on the 8th of February, proceeds as 
 follows: 
 
 u On my showing to Commodore Shubrick my instructions from 
 the War Department, of June 3d and 18th, 1846, he was at once 
 prepared to pay all proper respect to them; and, being at that time 
 the commander-in-chief of the naval forces on this station, he 
 acknowledged me as the head and commander of the troops in Cali 
 fornia, which Commodore Stockton and Lieutenant Colonel Fre 
 mont had hitherto refused. He then showed me the instructions 
 to Commodore Sloat, of July 12th, from the Navy Department, re 
 ceived by the Lexington, at Valparaiso, on the 2d December, and 
 
52 
 
 I 
 
 which he had brought with him from there; and, as they contained 
 directions for Commodore Sloat to take charge of the civil affairs 
 , in California, I immediately told Commodore Shubrick that I cheer 
 fully acquiesced^ and was ready to afford him any assistance in my 
 power. We agreed upon our separate duties; and / then went to 
 the bay of San Francisco, taking with me Lieutenant Halleck, of 
 the engineers, besides Captain Turner and Lieutenant Warner, 
 when was made a reconnoissance of the bay, with a view to the se 
 lection of sites for fortifications, for the protection of shipping in 
 the harbor and security of the land forces." 
 
 This establishes that General Kearny acknowledged the author 
 ity of Commodore Shubrick over the civil affairs of the territory, 
 and acquiesced in the determination of that officer not to disturb 
 Commodore Stockton's appointment until further information from 
 the government; and that the two agreed upon'their separate duties 
 in the premises. This letter also establishes another important cir 
 cumstance, viz: the true weight and value attached by General 
 Kearny himself to his instructions. " On showing to Commodore 
 Shubrick my instructions, he was at once prepared to pay all proper 
 respect to them, and being at that time commander-in- chief of the 
 naval forces, he acknowledged me AS THE HEAD AND COMMANDER OF 
 THE TROOPS," &c. The latter part of the sentence rests entirely 
 upon General Kearny; the letter of Commodore Shubrick, contain 
 ing nothing of the sort, and the phrase used in it toward General 
 K.j viz: " I sent him in the Cyane," &c., would seem to imply the 
 contrary. But grant General Kearny's position, and it results that 
 in his own estimation a "proper respect" to his instructions only 
 required him to be acknowledged as "the head and commander of 
 the troops," and that he did not consider himself entitled under 
 them to interfere with the civil affairs. General Kearny adds, after 
 stating that "he acknowledged me as the head and commander of 
 the troops," the words, "which Commodore Stockton and Lieutenant 
 Colonel Fremont had hitherto refused" Now, what is the testimony 
 to this point? Commodore Stockton testifies: "After General 
 Kearny arrived, and in my quarters and in presence of two of my 
 military family, I offered to make him commander-in- chief over all 
 of us. He said no; that the force was mine." 
 
 The agreement as to their respective powers, between Commo 
 dore Shubrick and General Kearny, and the determination of the 
 former, with the acquiescence of the latter, that the state of affairs 
 then existing should await further 'information from home, was, no 
 doubt, the legal and proper course, and, had it been continued in, every 
 thing would have proceeded harmoniously. It was continued "in, 
 so far as appears, until after the receipt of the instructions, which 
 they had determined to await. The wrong consisted in not obeying 
 those instructions. I put out of view entirely, in this connexion, 
 my right to be lawfully and regularly relieved, and plant myself 
 on the express letter of the instructions of the 5th November. 
 These are mandatory to the naval commanders to relinquish the 
 control of the civil administration, and to "turn over" the papers 
 connected with it. The only way in which they could be obeyed 
 
53 
 
 was*, for that commander to inform me of the order he had received, 
 and take from my hands the office, and the archives connected with 
 it, that he might, as directed, " relinquish' 7 and " turn them over" 
 to General Kearny. For some purpose yet unexplained unless its 
 object is seen in this prosecution they were not obeyed. I was 
 kept in ignorance of the wishes of the government, and General 
 Kearny undertook by wrongful orders to get possession from me 
 of what he could only lawfully receive from Commodore Shubrick. 
 
 And on this I leave the defence of this act, both where it is 
 charged as mutiny, and where as an offence against discipline. 
 
 Specification 5, under the charge of mutiny, is based on the 
 letter to Mr. Willard Hall, and charged as a design to persuade him 
 (Mr. Hall) to<aid me in my mutiny against General Kearny. The 
 first answer of Mr. Hall to the first question put to him (31st day) 
 entirely negatived that charge. On the day after Mr. Hall came 
 into court, and desired to explain his testimony. The. explanation 
 went to show that, by the expression in the letter, a cannot suffer 
 myself to be interfered with by any other," that General Kearny 
 was meant. The answer to the next question, however, was, that 
 General Kearny was not there at the time, and that Mr. Hall did 
 not know where he was, and so negatived the a explanation." 
 Moreover, as I was not in mutiny myself, I could not have been 
 inciting others to mutiny. The letter itself is all the defence which 
 I make to this specification. 
 
 Specification 6, under the charge of mutiny, is based on the pur 
 chase of an island near the mouth of the San Francisco bay, for the 
 United States, taking the title to the United States, and promising 
 the payment of $5,000. 
 
 My answer appears upon the face of the papers, that it was done 
 as governor, and for the benefit of the United States; a fact which, 
 if I understand the prosecution, and the decision of the court, re 
 fusing to receive any evidence to the point, is admitted. 
 
 Specification 7, under the charge of mutiny, and specification 4, 
 under the charge of disobedience of orders, are for the same act 
 or acts, and will be considered together. Not mustering the men 
 of the California battalion for payment is one of the points of the 
 charge: the evidence shows that the men, without exception, re 
 fused to be mustered. The officers, whose pay would not be mate 
 rially affected, were willing to be mustered. Not marching the 
 battalion to Yerba Buena, and ordering it to remain at San Gabriel, 
 and ordering Captain Owens not to deliver up the cannon of the 
 battalion, are the essential points of the rest of the specification, 
 with the aggravation of not obeying the orders brought by Captain 
 Turner, after promising to do so, and disregarding the proclamation 
 of General Kearny and Commodore Shubrick. 
 
 The order by Captain Turner was delivered on the llth of March: 
 on the 15th I gave my orders to Captain Owens, based upon my in 
 tended visit to Monterey, and on their face intended to keep the 
 troops in a condition to sustain themselves, or to repel actual in 
 vasion. 
 
 No notice of the President's instructions of the 5th of November 
 
54 
 
 was sent to me, nor did the joint proclamation, or any other paper 
 that I ever saw, refer to them. I was then governor and coin- 
 mander-in-chief in California, and had a right to be regularly re 
 lieved, if any instructions had terminated my power, and no one 
 had a right to depose me by force and violence. 
 
 The statement which I shall now make, is based upon the evi 
 dence given by different witnesses, who testified to the 'points I shall 
 mention, of whom Major Gillespie, Colonel Russell, Lieutenant 
 Minor, of the navy, Captain Cooke, Lieutenant Loker, were the 
 principal. 
 
 After the capitulation of Couenga, the country immediately sub 
 sided into profound tranquility, and security of life, person, and 
 property, bccame x as complete as in any part of the United States. 
 Travelling or at home, single or in company, armed or defenceless, 
 all were safe. Harmony and good will prevailed, and no trace of 
 the suppressed insurrection, or of resentment for what was passed, 
 was anywhere seen. I lived alone, after a short time, in the ancient 
 capital of the governors general of Los Angeles, without guards or 
 military protection; the battalion having been sent off nine miles 
 to the mission of San Gabriel. I lived in the midst of the people 
 in their ancient capital, administering the government, as a gover 
 nor lives in the capital of any of our States. 
 
 Suddenly, and in the beginning of the month of March, all this 
 was changed. "Men, armed to the teeth, were galloping about the 
 country." Groups of armed men were constantly seen. The whole 
 population was in commotion, and everything verged towards vio 
 lence and bloodshed. For what cause? The approach of the Mor 
 mons, the proclamations incompatible with the capitulation of Cou 
 enga, the prospect that I was to be deposed by violence, the 
 anticipated non-payment of government liabilities, and the general 
 insecurity which such events inspired. Such was the cause. I de 
 termined to go to Monterey to lay the state of things before Gen 
 eral Jearny, and gave all the orders necessary, to preserve tran 
 quility while I was gone. I then made that extraordinary ride of 
 which testimony has been given. General Kearny is the only wit 
 ness before the court of what took place at Monterey. He seems 
 to know but of two events in my interview with him: that I in 
 sulted him, and offered to resign my commission. It can hardly 
 be supposed that I rode 400 miles to Monterey, in less than four 
 days, and back in the same time for such purposes; yet these are 
 the only things done in that visit, as established by the testimony 
 before the court. To the question, whether I did not mention the 
 government liabilities, the answer was that he did not recollect it, but 
 would have refused if the application had been made. That I was 
 interrogated in presence of a witness, and admonished of the im 
 portance of my answers, is proved by himself. It was at that time 
 already resolved, as has since appeared, to arrest and try me for 
 mutiny, so that something of more importance to me still seemed 
 to be impending. . A little time was allowed for me to consider. 
 No communication was made to me of the instructions of Novem 
 ber 5th. Supposing that 1 was to be deposed by force and violence, 
 
55 
 
 I submitted, in order to prevent that consequence, and the injurious 
 results to the public service that would follow such a contest, and 
 returned to Los Angeles. 
 
 These are the meagre facts which the evidence discloses, and on 
 which I rely for my defence to all the allegations of this specifi 
 cation. 
 
 But I think proper to add, that the orders embraced in the speci 
 fication, though they were all complied with, as far as the state of 
 the country would allow, were, with a single exception that of 
 re-mustering the battalion illegal. The instructions of the 5th of 
 November direct that the naval commander shall " relinquish" to 
 General Kearny, or Colonel Mason, the control of the civil admi 
 nistration, and u turn over" all papers connected with it. Simple 
 obedience to the instructions themselves, therefore, made their com 
 munication to me, and my consequent regular and lawful relief from 
 the governorship, necessary, and all orders of General Kearny, or 
 any other person, inconsistent with that, were unlawful, while the 
 one concerning the archives were contrary to the express letter of 
 the instructions. 
 
 Specification 8, under the charge of mutiny, and 5, under that of 
 disobedience of orders, are based on the same act, and receive the 
 same answer with the last mentioned specification. 
 
 Specification 9, of mutiny, is based upon the act of ordering the 
 collector at San Pedro, on the 21st of March, to receive govern 
 ment paper in discharge of public dues, &c.; and the answer to it 
 is, that the order, in writing, of that day was to cover a verbal order 
 previously given, the officer wishing the written order for his justi 
 fication; that neither Commodore Shubrick nor any other person 
 gave me any notice of the President's instructions of November 5, 
 1846, and that I had not then, nor until a week afterwards at Mon 
 terey, yielded to what I believed to be a design to depose me, 
 by force and violence, from the governorship of California. 
 
 Specification 10, of the charge of mutiny, and 6, of disobedience of 
 orders, all refer to acts done when I was governor and commander- 
 in-chief in California, and are in alleged violation of the order 
 of January 16, 1847. I refer to 'my previous answers to show that 
 I was governor at that time, and to show the nullity and inapplica 
 bility of the orders of January 16, 1847. 
 
 Specification 11, of mutiny, and 7 of disobedience of orders, are 
 based on the same act; that of not obeying the order to repair to 
 Monterey, given to me on the 26th and 28th days of March. This 
 failure to obey that order is sufficiently accounted for in the testi 
 mony, which shows the danger of travelling at that time; and there 
 was nothing on its face, or in the testimony in relation to it, which 
 .showed it to be urgent, or that the public service required risks of 
 person or life in attempting to comply with it. The words, < 
 desire to see you in this place," &c., &c., as used'in the order, 
 seems not to come within the meaning of an order to be obeyed at 
 all hazards; and the first clause of the order, written on the 28th 
 day of March, directing me to consider all instructions coming 
 from him (Colonel Mason) as if they had come from General 
 
.56 
 
 Kearny himself, seemed to encourage the same idea of the want of 
 urgency in the desire to see me at Monterey. 
 The following is the clause of that order: 
 
 ij HEAD-QUARTERS, lOin MILITARY DEPARTMENT, 
 
 a Monterey, California , March 28, 1847. 
 
 u SIR: This will be handed to you by Colonel Mason, 1st dragoons, 
 who goes to the southern district, clothed by me with full authority 
 to give such orders and instructions upon all matters, both civil 
 and military, in that section of country, as he may deem proper and 
 necessary. Any instructions he may give to you will be considered 
 as coming from myself." 
 i 
 
 The execution of his own order, and of consequent additional 
 orders given to me by Colonel Mason, occupied so much time that 
 it became impossible to reach Monterey within the period fixed by 
 him, and delayed my departure until it was further interfered with 
 by the condition of the country. 
 
 As a further answer to all the orders given to me on and after 
 the. 1st of March, 1847, I am advised by counsel to say that they 
 are in violation of the orders of General Scott, of November 3, 
 1846, to General Kearny, viz: 
 
 u It is known that Lieutenant Colonel Fremont, of the United 
 States rifle regiment, was, in July last, with a party of men, in the 
 service of the United States topographical engineers, in the neigh 
 borhood of San Francisco, or Monterey bay, engaged in joint 
 operations against Mexico with the United States squadron on that 
 coast. Should you find him there, it is desired that you do not de 
 tain him against his wishes a moment longer than the necessities of 
 the service'may require." 
 
 This order was carried out by Colonel Mason, and came to the 
 hands of General Kearny before any orders issued by him with re 
 spect to me on the 1st March, on which day he addressed an official 
 letter to me, reciting that he had the directions of the general-in- 
 chief not to detain me against nay wishes a moment longer than 
 the necessities of the service required, and leaving me at " liberty" 
 to leave the country, after I had complied with the instructions in 
 the letter and with the orders referred to I rely upon the conclu 
 ding paragraph of this official letter to prove that General Kearny, 
 at that time* could not have considered criminal, and worthy of the 
 prosecution now carried on, any act of mine previous to the writing 
 of that letter. 
 
 The following is the letter: 
 
 HEAD-QUARTERS, lOTii MILITARY DEPARTMENT, 
 
 Monterey, U. C., March 1, 1847. 
 
 SIR: By department orders No. 2, of this date, which will be 
 handed to you by Captain Turner, 1st dragoons, A. A. A. G., for 
 my command, you will see that certain duties are there required 
 of you as commander of the battalion of California volunteers. 
 
57 
 
 In addition to the duties above referred to, I have now to direct 
 that you will bring with you, and with as little delay as possible, 
 all the archives and public documents and papers which maybe 
 subject to your control, and which appertain to the government of 
 California, that I may receive them from your hands at this place, 
 the capital of the territory. I have directions from the general-in- 
 chief not to detain you in this country against your wishes a mo 
 ment longer than the necessities of the service may require, and 
 you will be at liberty to leave here after you have complied with 
 these instructions, and those in the " orders" referred to. 
 
 Very respectfully, your obedient servant, 
 
 S. W. KEARNY, 
 Brigadier General and Governor of California. 
 
 To Lieut. Col. J. C. FREMONT, 
 
 Regiment of Mounted Riflemen^ commanding 
 
 Battalion of California vols.j Ciudad de Los Jingeles. 
 
 Having now answered all the specifications under the charges of 
 mutiny and disobedience of orders, I have to say that five of the 
 same acts, on which these specifications are founded, are also laid 
 under the charge of conduct prejudicial to good order and dis 
 cipline. I am advised by counsel that offences enumerated in the 
 rules and articles of war cannot be prosecuted among the non- 
 enumerated offences of the 99th article of war, (Hough, page 630,) 
 but I take no exception to any illegality or irregularity, if such 
 there be in the charges, and make the same answers to these five 
 specifications, under the charge under which they are last found, 
 as was made under the two preceding charges. 
 
 I have deemed it my duty to reply to each specification, because 
 it is the duty of the court to find upon each, and because it is 
 right to show my conduct consistent and proper at all points. I 
 obeyed orders, after the first of March, to avoid bloodshed and 
 violence. Not relieved, as governor, and deeming them illegal, I 
 obeyed. Now, being put upon my trial according to law, I claim 
 the benefit of law, and to be considered governor until I was re 
 lieved. In themselves, most of the specifications, after the first 
 leading ones, are either cumulative or insignificant in the presence 
 of the grave ones which precede them, and which woufd hardly of 
 themselves have been considered worthy of such a prosecution, and 
 while replying separately to each of these minor and cumulative 
 accusations, I refer to the main leading argument at the opening 
 of the charges of mutiny, in usurping the office of governor, and 
 disobedience to the order of January 16, 1847, as presenting the 
 general and sustained defence which the gravity of the charges 
 required. 
 
 I now come to a different part of my defence but of which I 
 fairly gave notice to the court, and through it to the prosecution, 
 at an early stage of this trial that of impeaching the motives and 
 the credit of the prosecuting witness. To do this is both legal and 
 fair, where there is just ground for it; and that is abundantly the case 
 in this instance. A prosecutor should have none but public mo- 
 
58 
 
 lives; his testimony should be scrupulously fair towards the ac 
 cused. If he contradicts other witnesses, which General Kearny 
 has so much done, it becomes necessary to weigh their respective 
 credit; and in doing this I have a right, and moreover it is my duty 
 to myself and to others, to produce instances of erroneous testi 
 mony he may have exhibited, either from defect of memory or from 
 evil intent; and for that purpose to contrast his own testimony 
 with itself where it varies, or with that of other witnesses where 
 they contradict him. To this part of my defence I now proceed, 
 and speak first of the acts which go to the motives of the prose 
 cutor: 
 
 1. Giving me no notice of his intended arrest. He admits that 
 this arrest was resolved upon in January, 1847, and that I had no 
 notice of it until I was actually arrested on the frontiers in the lat 
 ter part of August following. Others were informed of it, but not 
 myself, the one above all others the most interested to know. I 
 was brought across the continent in a state of virtual imprisonment, 
 to be tried for a multitude of offences, charged to have been com 
 mitted on the shores of the Pacific, without the warning which 
 would enable me to bring evidence to meet a single charge; while 
 my accuser, and general, brought with him all that he deemed ne 
 cessary either of written evidence or of witnesses to insure my 
 conviction. It is impossible, in my opinion, to reconcile this con 
 duct with any fair and honorable motive. It laid me under the ne 
 cessity of choosing between a frial, brought on me by surprise, and 
 almost without the means of defence, or of suffering ruinous 
 charges, enforced by newspaper publications, to hang over my 
 head. The latter, according to Major Cooke's testimony, seems to 
 have been General Kearny's calculation ; and as I deemed the 
 effect of such impending charges and publications would be worse 
 than any conviction, I was forced into a trial, unprepared for it, to 
 take the chance of any testimony that might be found. 
 
 2. Denying me the privilege of going, to Mexico to join my regi 
 ment when I had made preparation of 60 men and 120 horses to do 
 so, and had not the least doubt of reaching General Taylor's camp 
 and thence going to the regiment expected (according to infor 
 mation received from Washington) to be on the road from Vera 
 Cruz to Mexico. I expected to reach it in July, which would have 
 been in time for the great operations impending, and since so 
 grandly executed. The refusal to let me go did me many injuries 
 which a soldier can feel; and, besides, left me involved in debts 
 for my preparations, and was, further, in violation of General 
 Scott's directions, not to detain me in the country, against my 
 wishes, a moment longer than the necessities of the service re 
 quired; and, also, in violation of his own official letter to me of 
 March 1, 1847, leaving me at liberty to quit the country when I 
 pleased, after complying with a few small orders, not amounting to 
 u necessities" of the service, but which were complied with. 
 
 3. Taking away from me the command of my topographical party; 
 taking away the scientific instruments which I had so long, used; 
 
59 
 
 leaving behind my geological and botanical specimens of near two 
 years' collection; leaving behind the artist of the expedition, (Mr. 
 Kern,) with his sketches and drawings; leaving behind my assist 
 ant, (Mr. King;) he and Mr. Kern both standing in a relation to be 
 material witnesses to me in any inquiry into my conduct; denying 
 me the privilege of returning to the United States by any new route 
 which would enable me to correct previous explorations, or add to 
 geographical and scientific knowledge; making me follow on his 
 trail in the rear of his Mormon escort. All this after he had, in 
 conformity to General Scott's instructions, previously left me at 
 "liberty" to quit California when I pleased, after executing the 
 few small orders above referred to. 
 
 4. Interfering with Commodore Biddle to detain Major Gillespie 
 in California, an officer known to have been intimately associated 
 with me in California, and who, arriving here a fortnight after this 
 trial had commenced, has shown himself to be a material witness 
 for me. The fact of interference is admitted; the circumstances at 
 tending it are most suspicious; the reasons given for it most inad 
 equate, and, besides, contradicted by the fact that Major Gillespie 
 was soon after allowed u to go about the country " and did not do 
 the mischief which had been apprehended from his being at large. 
 The detention of Major Gillespie was the detention of Commodore 
 Stockton and his party; so that this interference delayed the a.rri- 
 val not only of Major Gillespie, but of Commodore Stockton, Cap 
 tain Hensley, and other material witnesses who came with him. 
 
 5^ Not communicating to me his knowledge of the instructions 
 of the 5th of November and 12th of July, 1846, w r hen a knowledge 
 of those instructions were so necessary for the safe guidance of my 
 conduct. The excuse, in relation to that of the 5th of November, 
 that he was not in the habit of communicating instructions to juni 
 ors, is invalidated by the fact of the previous communication of those 
 of June, 1846, when I was equally junior militarily, and before I had 
 become governor and commander-in-chief. 
 
 6. Making injurious .representations to the War Department 
 against me and against the battalion under my command, without 
 giving me any knowledge of such representations, and which I have 
 only found out in the progress of this trial, in searching for testi 
 mony in the department. 
 
 7. My reception at Monterey on March 26th, for the nature of 
 which I now refer entirely to General Kearny's testimony. I made 
 a most extraordinary ride to give information to prevent an insur 
 rection. I asked an interview on business, and had it granted, and 
 found Colonel Mason with him. The only thing, it would seem, 
 that I came for in that interview, was to insult General Kearny 
 and to offer my resignation; and he does not even know what I 
 went for. Certainly the public service, to say nothing of myself 
 as an officer, required a different kind of reception from the one I 
 received. 
 
 8. The order given to Colonel Mason on the 28th of March, 
 after what had happened in his presence on the 26th,) to proceed 
 
 to Los Angeles, where I was, with the power and authority over 
 
60 
 
 ine, of which I was officially advised by letter of that date. I no w 
 only mention the order, in connexion with my reception at Monte 
 rey, as represented by General Kearny, and add nothing to it. I 
 do not go beyond the evidence. 
 
 9. The fact of not relieving me in some legal form from the du 
 ties of governor of California, after the President's instructions of 
 the 5th of November arrived, and concealing from me all knowledge 
 of those instructions, while putting the interrogatories, the answers 
 to which he has sworn he warned me might be of so much impor 
 tance. 
 
 10. The march of the Mormons upon Los Angeles, when I was 
 expected to be there, and would 'have been, except for the urgent 
 business which carried me to Monterey the " crushing " that might 
 have taken place, if a li revolt of the people had not been appre 
 hended and all the circumstances of that movement I leave where 
 the evidence placed it. 
 
 11. The conduct of Colonel Mason to me at Los Angeles, (so far 
 as the evidence discloses it,) is by me referred to the full authority 
 over me, with which he was clothed by General Kearny, and of 
 which I was notified in this clause of General Kearny's official let 
 ter to me: 
 
 f "Sin: This will be handed to you by Colonel Mason, 1st dragoons, 
 who goes to the southern district, clothed by me with full author 
 ity to give such orders and instructions in that section of the coun 
 try as he may deem proper and necessary. Any instructions he 
 may give to you will be considered as coming from myself." 
 
 12. The exhibition of myself and the citizens of my topographi 
 cal party at Monterey, on the 30th May the circumstances of the 
 march from that place to Fort Leavenwprth, and the manner of the 
 arrest there I leave in like manner where the evidence placed it; 
 giving it as my opinion, in the twelve instances enumerated, be 
 sides in many others to be seen in the testimony, that no presump 
 tion of acting from a sense of public duty can outweigh the facts 
 and appearances to the contrary, and that all these twelve instances, 
 and others to be seen in the testimony, go to impeach his motives 
 in this prosecution. 
 
 I now proceed to the last point of my defence the impeachment 
 of the credit of General Kearny as a witness before this court. The 
 law gives me the right to do so. Morality condemns the exercise 
 of that right, unless sternly justified by credible evidence. I feel- 
 so justified. I also feel that this case, above all others, admits of 
 the exercise of all the rights against this witness which the law and 
 the evidence allow to the accused. 
 
 It is a case in which the witness comprises, in his own person, 
 the character of accuser, prosecutor, leading witness, commanding 
 general, arresting officer and bringing me, by virtue of his supe- 
 
61 
 
 rior rank, three thousand miles across the continent, to be tried ? 
 without warning, upon unknown charges, or to be ruined by infa-' 
 mous accusations hanging over me and urged in the newspapers. 
 This is the case, and I claim in it the right of impeaching the 
 credit of the witness, both upon his own swearing and that of 
 others. 
 
 Referring then to the points on which the credit of the witness 
 is already impeached in other parts of the defence, I will first call 
 attention, under this head, to what relates to the expedition of 
 December and January, 1846 and 1847, from San Diego to Los 
 Angeles, and especially with reference to the testimony concerning 
 the command of the troops in that expedition. This is a matter on 
 which General Kearny lays great stress throughout, bottoming, at 
 one time, his claim to chief authority in the province, mainly on 
 the results of that expedition, and his alleged command of it. I 
 shall, consequently, examine and test what he says in relation to 
 it, with some minuteness. 
 
 And first, as to the point, at whose instance was the expedition 
 raised and marched? There is great discrepancy here. In General 
 Kearny's letter of 17th January to the department he says: 
 
 "I have to state that the march of the troops from San Diego to 
 this place was reluctantly consented to by Commodore Stockton } on 
 my urgent advice that he should not leave Lieutenant Colonel Fre 
 mont unsupported to fight a battle on which the fate of California 
 might, for a long time, depend; the correspondence to prove which 
 is now with my papers at San Diego" &c., &c. 
 
 In his cross-examination, on the fourth day of the' trial, he 
 
 says: 
 
 "In the latter end of December, an expedition was organized at 
 San Diego to march to Los Angeles to assist Lieutenant Colonel 
 Fremont; and it was organized in consequence , as I believe, of this 
 paper, which is a copy of a letter from me to Commodore Stockton," 
 (referring to his letter of December 22, hereafter quoted.) 
 
 Let us contrast this first positive assertion, and second more re 
 served declaration of belief, with facts, with other testimony, 
 and finally with the "proof" which General Kearny tenders. 
 
 Commodore Stockton testifies: 
 
 "After General Kearny arrived, (on the 12th December,) and in 
 my quarters, and in presence of two of my military family, I 
 offered to make him commander-in- chief over all of us, and I offered 
 to go as his aid-de-camp. He said no; that the force was mine; 
 and he would go as my aid-de-camp, or accompany me." 
 
 Now, "to go" where? to "accompany" where? 
 
 This, if not sufficiently explicit, is made entirely so. by the cer 
 tificate of Messrs. Spieden and Mosely, of the navy, offered by 
 Commodore Stockton, 'in corroboration, under the sanction i 
 oath, and, of course, forming a proper interpretation of his words. 
 This certificate is as follows; 
 
62 
 
 We, the undersigned, were present at a conversation held be 
 tween Commodore Stockton and General Kearny, at San Diego, 
 shortly after the arrival of the general, in which conversation the 
 commodore offered to give General Kearny the "command-in- 
 chief " of the, forces he was preparing to march with to the Ciudad 
 de los Angeles, and to act as his aid de- camp. This offer the general 
 declined, but said he would be most happy to go with the commo 
 dore as his aid-de-camp, and assist him with his head and hand. 
 
 WILLIAM SPIEDEN, U. S. JV. 
 SAMUEL MOSELEY, U. S. JV. 
 
 SAN DIEGO, February 5, 1847. 
 
 Again, Commodore Stockton testifies that, at a subsequent inter 
 view, a few days afterwards, he made to General Kearny "the same 
 offer, in pretty much the same language, and received pretty much 
 the same answer." 
 
 It is certain, then, that General Kearny's letter of the 22d De 
 cember was not the inducing cause of the expedition, as "believed," 
 in General Kearny's testimony, and that "the march of the troops" 
 was not a matter that Commodore Stockton "reluctantly assented 
 to," as asserted in General Kearny's official letter; and it is also 
 certain that General Kearny could not have supposed either to be the 
 case, for he had been informed ten days before of the design to 
 send the expedition; that it was "preparing to march;" and he 
 had been twice offered, and had twice declined, the command of it. 
 
 Commodore Stockton further testifies: 
 
 " I now set to work to make the best preparations I could to 
 commence our march for the Ciudad de los Angeles. During this 
 time an expedition that had been sent to the south for horses re 
 turned, and brought with it a number of horses and cattle. Cap 
 tain Turner was allowed to take his pick of the horses for the dra 
 goons. After he had done so he wrote to me this note: 
 
 SAN DIEGO, December 23, 1846. 
 
 COMMODORE: In compliance with your verbal instruction to ex 
 amine and report upon the condition of the public horses turned 
 over to me for the use of C company, 1st dragoons, I have the 
 honor to state that, in my opinion, not one of the horses referred 
 to is fit for dragoon service, being too poor and weak for any such 
 purpose; also, that the company of dragoons, under my command, 
 can do much better service on foot than if mounted on those horses. 
 
 I am, sir, with high respect, your obedient servant, 
 
 H. S. TURNER, 
 Captain 1st dragoons, commanding company C. 
 
 Commodore R. F. STOCKTON, 
 
 United. States Navy, commanding, #c." 
 
 The exact day of the return of this expedition for horses and 
 cattle does not appear. But, as there had been time for Captain 
 
63 
 
 Turner to be allowed to " take his pick" from the horses, examine 
 them, and make a report upon them by the 23d of December, it is 
 nearly certain that it must have returned by the 22d; and hence it 
 would seem that General Kearny's letter, sent to Commodore 
 Stockton in the night of the last mentioned day, in which he " re 
 commends" the expedition, and in which he claims the whole merit 
 of the march, and to have induced Commodore Stockton reluctantly 
 to consent to it, was not written till he had not only been repeat 
 edly informed that the expedition was in preparation, and he had 
 been twice offered the command of it, but not till the horses and 
 cattle for its use had actually arrived, and probably a part of them 
 turned over to his own company of dragoons. This, indeed, is 
 rendered nearly certain by the fact that the preparations for the 
 expedition were so far advanced that Commodore Stockton's gen* 
 eral orders for the march were issued on the day next following 
 General Kearny's letter, which he pretends, under oath, to have 
 been the inducing cause of the expedition. 
 
 But General Kearny is entitled to the benefit of the "proof" 
 which he vouches to the department in this passage of his letter: 
 
 ' "I have to state that the march of the troops from San Diego to 
 to this place was reluctantly consented to by Commodore Stockton, 
 on my urgent advice that he should not leave Colonel Fremont un 
 supported to fight a battle on which the fate of California might 
 for a long time depend; the correspondence to prove which is now 
 with my papers at San Diego, and a copy of which will be fur 
 nished to you on my return to that place." 
 
 This "correspondence," as he certifies it on the twelfth day of 
 the trial, consists of three letters and Commodore Stockton's gen 
 eral orders for the march. I will set out all of them: 
 
 SAN DIEGO, December 22, 1846. 
 
 DEAR COMMODORE: If you can take from here a sufficient force 
 to oppose the Cahfornians, now supposed to be near the Pueblo, 
 and waiting for the approach of Lieutenant Colonel Fremont, I 
 advise that you do so, and that you march with that force as early 
 as possible in the direction of the Pueblo, by which you will either 
 be able to form a junction with Lieutenant Colonel Fremont, or 
 make a diversion very much in his favor. 
 
 I do not think that Lieutenant Colonel Fremont should be left 
 unsupported to fight a battle upon which the fate of California may, 
 for a long time, depend, if there are troops here to act in concert 
 with him Your force, as it advances, might surprise the enemy at 
 the St. Louis mission, and make prisoners of them. 
 
 I shall be happy, in such an expedition, to accompany you, and 
 to trive you any aid, either of head or hand, of which I may be 
 capable. 
 
 Yours, truly, 
 
 S. W. KEARNY, 
 
 Brigadier General. 
 
 To Commodore STOCKTON, 
 
 Commanding United States forces, San Diego. 
 
64 
 
 HEAD-QUARTERS, SAN DIEGO, 
 
 December 23, 1846, 
 
 DEAR GENERAL: Your note of yesterday was handed to me last 
 night by Captain Turner, of *;he dragoons. 
 
 In reply to that note, permit me to refer you to the conversation 
 held with you yesterday morning at your quarters. I stated to you 
 distinctly that I intended to march upon St. Louis Rey as soon as 
 possible, with a part of the force under my command, and that I 
 was very desirous to march on to the Pueblo to co-operate with 
 Lieutenant Colonel Fremont:, but my movements after, to St. Louis 
 Rey, would depend entirely upon the information that I might re 
 ceive as to the movements of Colonel Fremont and the enemy. It 
 might be necessary for me to stop the pass of San Felipe, or march 
 back to San Diego. 
 
 Now, my dear general, if the object of your note is to advise me 
 to do anything which would enable a large force of the enemy to 
 get into my rear and cut off my communication with San Diego, 
 and hazard the safety of the garrison and the shins in the harbor, 
 you will excuse me for saying I cannot follow any such advice. 
 
 My PURPOSE still is to march for St. Louis Rey as soon as I can 
 get the DRAGOONS and riflemen mounted, which I hope to do in two 
 clays. 
 
 Faithfully, your obedient servant, 
 
 R. F. STOCKTON, 
 Commander-in-chief and governor 
 
 of the territory of California. 
 
 To Brigadier General S. W. KEARNY, 
 
 United States Army. 
 
 SAN DIEGO, 'December 23, 1846. 
 
 DEAR COMMODORE: I have received yours of this date, repeating, 
 as you say, what you stated to me yesterday; and in reply I have 
 only to remark that, if I had so understood you, I certainly would 
 not have written my letter to you of last evening. 
 
 You certainly could not for a moment suppose that I wouldjad- 
 vise or suggest to you any movement which might endanger the 
 safety of the garrison and the ships in the harbor. 
 
 My letter of yesterday's date stated that "if you can take from 
 here," &c., of which you were the judge, and of which I knew 
 nothing. 
 
 Truly yours, 
 
 S. W. KEARNY, 
 
 Brigadier General. 
 Commodore R. F. STOCKTON, 
 
 Commanding U. S. Navy, fyc., San Diego. 
 
 GENERAL ORDEIS: 
 
 The forces composed of Captain Tilghman's company of artillery, 
 a detachment of the 1st regiment of dragoons, companies A and B 
 of the California battalion of mounted riflemen, and a detachment 
 
65 
 
 of sailors and marines, from the frigates Congress and Savannah 
 and the ship Portsmouth, will take up the line of march for the 
 Ciudad de los Angeles on Monday morning, the 28th instant, at 10 
 o'clock, a. m. 
 
 By order of the commander-in-chief. 
 
 J. ZIELAN, 
 
 Brevet Captain and Adjutant. 
 SAN DIEGO, December 23, 1846. 
 
 The character of this correspondence entirely destroys General 
 Kearny's asseverations; both the one in his report that Commodore 
 Stockton " reluctantly consented" to the march of the troops, and 
 the one before the court that he " believed" that the expedition 
 was organized in consequence of his letter of a.dvice. 
 
 Commodore Stockton's letter is explicit both of his present and 
 previous " intention," "desire" and "purpose" to march "as 
 soon as possible;" while the reference to the dragoons, which were 
 General Kearny's especial corps, shows that the subject of the ex 
 pedition must have been previously entertained between the two 
 correspondents. Allow General Kearny, howjBver, the benefit of 
 any misunderstanding, touching Commodore Stockton's disposition 
 and intentions, that he may have been under when he wrote his 
 letter, the commodore's reply corrects all such mistakes, and 
 leaves General Kearny's subsequent assertions on this head direct 
 contradictions of the declarations of Commodore Stockton. 
 
 The next question in connexion with this expedition is, who was 
 its commander? General Kearny says he was; Commodore Stock 
 ton, sustained bythe testimony of many others, says he was. As 
 it could not have had two commanders, at the same time, I will 
 compare the testimony. General Kearny's claim first comes to at 
 tention in a letter to the department, of which the following is the 
 first paragraph: 
 
 "'HEAD QUARTERS, ARMY OF THE WEST, 
 
 " Ciudad de los Angeles, January 12, 1847. 
 
 " SIR: I have the honor to report that, at the request of Commo 
 dore R. F. Stockton, United States navy, (who in September last 
 assumed the title of governor of California,) I consented to TAKE 
 COMMAND of an expedition to this place, (the capital of the cqu'n- 
 try,) and that on the 29th December, I left San Diego with about 
 500 men, consisting of 60 dismounted dragoons, under Captain 
 Turner, 50 California volunteers, and the remainder of marines and 
 sailors, with a battery of artillery; Lieutenant Emory (topographi 
 cal engineers) acting as assistant adjutant general. Commodore 
 Stockton accompanied us." 
 
 Here the claim to have been the commander is plain, unequivo 
 cal, and unconditional. In his letter to me, however, of the same 
 date, (January 12th,) he expresses it perhaps even more strongly; 
 
 5 
 
66 
 
 since Commodore Stockton is not mentioned at all, and the pro 
 noun "I" and "me" exclude the idea of any participant in the 
 " possession" or command: 
 
 PUEBLA DE LOS ANGELES, 
 
 January 12, 1847. Tuesday , 6, p. m. 
 
 DEAR FREMONT: I am here in possession of this place, with sai 
 lors and marines. We met and defeated the whole force of the 
 Californians the 8th and 9th. They have not now to exceed 300 
 men concentrated. Avoid charging them, and come to me at this 
 place. 
 
 Acknowledge the hour of receipt of this, and when I may ex 
 pect you. Regards to Russell. 
 
 Yours, 
 
 S. W. KEARNY, 
 
 t Brigadier General. 
 
 Lieutenant Colonel FREMONT. 
 
 At the next step, General Kearny slightly varies his claim, and 
 admits some qualification to the completeness of his command. 
 This is on his cross-examination. (Fourth day of the trial.) 
 
 "In the latter end of December, an expedition was organized at 
 San Diego to march to Los Angeles, to assist Lieutenant Colonel 
 Fremont, and it was organized in .consequence, as I believe, of 
 this paper, which is a copy of a letter from me to Commodore 
 Stockton, referring to his letter to Commodore Stockton of De 
 cember 22.) Commodore Stockton, at that time was acting as 
 g'overnor of California, so styling himself. * * * * He de 
 termined on the expedition, and on the morning of the 29th De 
 cember the troops were paraded at San Diego for the inarch. The 
 troops consisted of about five hundred sailors and marines, about 
 sixty dragoons, and about forty or fifty vokinteers. While they 
 were on parade, Commodore Stockton called several officers to 
 gether; Captain Turner, of the dragoons, and Lieutenant Minor, 
 of the navy, I know were there, and several others. He then re 
 marked to them to the following purport: 4 Gentlemen, General 
 Kearny has kindly consented to take the command of the troops 
 on the expedition; you will, therefore, look upon him as your com 
 mander. 1 shall (ro along as GOVERNOR and commander-in- chief in 
 CALIFORNIA.' We marched toward Los Angeles," &c. * * * * 
 " The troops, under my command, inarched into Los Angeles on the 
 10th of January," &c. 
 
 At the next stage, in reply to a question of the judge advocate, 
 he returns to the positive and unconditional assertion of command: 
 
 "By the act of Commodore Stockton, who styled himself gov 
 ernor of California, the sailors and marines were placed UNDER MY 
 COMMAND, on the 29th December, 1846, for the march to Los An 
 geles. I COMMANDED THEM ON THE EXPEDITION; Commodore Stock- 
 
67 - 
 
 ton accompanied us. I exercised no command whatever over ConT 
 modore Stockton, nor did he exert any whatever ove me." 
 
 Afterward (fourteenth day) under examination by the court, and 
 when information had been received here of the arrival of Com 
 modore Stockton in the country, the witness greatly modified his 
 position on this point, and admits several acts of authority done 
 on the march by Commodore Stockton, and that he "felt it his 
 duty" to "consult the wishes" of the commodore. 
 
 "I found Commodore Stockton, on my arrival at San Diego, on 
 the 12th December, 1846, in command of the Pacific squadron, 
 having several ships, either two or three, in the harbor at that 
 place. Most of his sailors were on shore. He had assumed the 
 title of governor of California in the month of August previous. 
 Jill at San Diego addressed him as 'governor.' I DID THE SAME. 
 
 "After he had determined on the march from San Diego to Los 
 Angeles, the troops being paraded for it on the 29th December, he, 
 in the presence of several officers, among whom were myself, Cap 
 tain Turner of the dragoons, and Lieutenant Minor, of the navy, 
 and others, whose names I do not recollect, remarked to them: 
 'Gentlemen, General Kearny has kindly consented to take command 
 of the troops in this expedition; you will therefore consider him 
 as your commander. I will go along as GOVERNOR and commander- 
 in-chief IN CALIFORNIA.' Under Commodore Stockton's directions 
 every arrangement for the expedition was made. I had nothing 
 whatever to do with it. We marched from San Diego to Los An 
 geles. Whilst on the march, a few days before reaching Los An 
 geles, a commission of two citizens, as I believe, on behalf of Go 
 vernor Flores, came to Commodore Stockton with a communication 
 to him as the governor, or commander-in-chief in California. Com 
 modore Stockton replied to that communication without consulting 
 me. On the march I at no time considered Commodore Stockton 
 under my direction; nor did I at any time consider myself under 
 his. His assimilated rank to officers of the army at that time was, 
 and now is, and will for upwards of a year remain, that of a col 
 onel. 
 
 "Although I did not consider myself at any time, or under any 
 circumstances, as under the orders of Commodore Stockton, yet, as 
 so large a portion of my command was of sailors and marines, I 
 felt it my duty on all important subjects to consult his wishes, and, 
 as far as I consistently could do so, to comply with them." 
 
 But it was not till the fifty-first day of this trial, when he had 
 had the benefit of several weeks reflection, added to information of 
 the character of the testimony delivered by Commodore Stockton 
 and others, and when he came into court fortified with his own 
 questions, draw.n up by himself to square with pre-arranged an 
 swers, that he could be brought to the point of admitting that, dur 
 ing the march, the commodore had exercised the prerogative of 
 sending, him what he calls "messages," but the commodore calls 
 "orders," and had directed many movements of the expeditioh. 
 But even this day's admissions are so reluctant, and with so many 
 
. 68 
 
 reservations, that for the plain facts other testimony must ne 
 cessarily be brought in. 
 
 General Kearny recites twice, and with much particularity, in his 
 testimony to this point, his version of what Commodore Stockton 
 said to the troops before marching from San Diego on the subject 
 of the command; laboring, by an ingenious turn of the last clause, 
 to draw a distinction between the commander-in-chief in the 
 territory, and the commander-in-chief of the troops. This is 
 his preci.se version of Governor Stockton's remarks : "Gentle 
 men, General Kearny has kindly consented to take command of 
 the troops in this expedition; you will therefore look upon him as 
 your commander. I shall go along as GOVERNOR and commander- 
 in-chief IN CALIFORNIA. 
 
 This fine-spun distinction seems, infact, the corner stone of 
 General Kearny's claim to have been the commander of the expe 
 dition, for while he constantly persists in that pretension, he as con 
 stantly admits that Commodore Stockton was the governor and com 
 mander in the territory. 
 
 I do not refer to this because I attach any value to the point in 
 itself. For any argument that I desire, the version given by Gen 
 eral Kearny would answer as well as any other; for if Commodore 
 Stockton was governor and commander-in-chief of California^ his 
 authority was sufficient for my case, since Los Angeles, where I 
 believe the charges are all laid, is certainly within that province. 
 But the distinction drawn in the version given by the witness was 
 considered important by him, and that version is contradicted; and 
 this is the point of view in which I present it. It is contradicted 
 by Commodore Stockton, Lieutenant Gray, Lieutenant Minor, and 
 the certificate of Lieutenant Rowan, all whose concurrent testi 
 mony affirms that Commodore Stockton's reservation of authority 
 related to the command-in-chief of the expedition, without the 
 words of qualification to whrch General Kearny testifies; and it is 
 worthy of note that, though a witness of the prosecution, Captain 
 Turner, was present at the address, the prosecution have not thought 
 proper to bring him to sustain General Kearny thus contradicted. 
 
 A few detached passages from the testimony will show how ma 
 terially General Kearny is contradicted, in other respects, upion this 
 point of the command: 
 
 General Kearny: "By the act of Commodore Stockton, the sail 
 ors and marines were placed under my command. I commanded 
 them on the expedition." 
 
 Commodore Stockton: "During which march I performed all 
 the duties which I supposed devolved on the commander-in-chief. 
 
 General Kearny: ^1 exercised jio command whatever over Com 
 modore Stockton, nor did he exert any whatever over me." 
 
 Commodore Stockton; "I was in the habit of sending my aid-de 
 camp to General Kearny to inform him what time I wished to move 
 in the morning; and I always decided on the route we should take, 
 and when and where we should encamp." 
 
 General Kearny: '/The troops under my command marched into 
 Los Angeles on the 10th of January." 
 
69 
 
 Commodore Stockton: "And when \ve marched into the city,/ 
 led the way, at the head of the advanced guard" 
 
 General Kearny: " On the march, I at no time considered Com 
 modore Stockton under my direction, nor did I, at any time, consi 
 der myself under his." 
 
 Commodore Stockton: "I observed the guns being unlimbered; I 
 was told it was done by order of General Kearny to return the fire 
 of the enemy; I ordered the guns limbered up, and the forces to 
 cross the river before a shot was fired." "I observed that the men 
 of the right flank had been formed into a square, and General 
 Kearny at their head. I sent my aid-de-camp, Mr. Gray, to Gene 
 ral Kearny, with INSTRUCTIONS to move that square, and two pieces 
 of artillery, immediately up the hill." 
 
 General Kearny: "During our march many messages were 
 brought to |me from Commodore Stockton; those messages I looked 
 upon as suggestions and expressions of his wishes. I have since 
 then learned that he considered them in the light of orders." 
 
 Commodore Stockton: "I sent for Captain Emory; I asked him 
 by whose order the camp was making below the hill. He said by 
 General Kearny's order. "I told him to go to General Kearny and 
 tell him that it was my order that the camp should be immediately 
 moved to the top of the hill." "I sent my aid-de-camp, Mr. Gray, 
 to General Kearny, with instructions to move," &c. "The witness 
 (Commodore Stockton) in enumerating some of the orders given and 
 some of the details, executed by himself, meant merely to cite in 
 stances in which General Kearny recognized and acknowledged his 
 (the witness's) command-in- chief on the field of battle, as well as 
 in the march." 
 
 General Kearny: "During our march, his (Commodore Stockton's) 
 authority and command, though it did not extend over me, or over 
 the troops which he had himself given me, extended far beyond," 
 &c. 
 
 Commodore Stockton: "Commodore R. F. Stockton begs leave to 
 add, &c., that he wishes to be understood as meaning distinctly to 
 convey the idea that General Kearny was fully invested with the 
 command of the troops in the battles of the 8th and 9th of Janu 
 ary, SUBJECT to the orders of him, the witness, as COMMANDER-IN- 
 CHIEF. Most and nearly all the execution of details was confided 
 to General Kearny as SECOND in command." "He could not attempt 
 to enumerate and specify the many and important acts of General 
 Kearny as SECOND in command." "When the troops arrived at San 
 Bernardo, I made my head-quarters a mile," or two miles, in advance 
 of the camp; and I SENT to General Kearny to send me the marines 
 and a piece of artillery, which was immediately done." "/ORDERED 
 the troops all to lie down," fyc. "After having DIRECTED the troops 
 to be formed, &c., / took the marine guard and two pieces of artil 
 lery," &c. " On my return, / gave ORDERS where the different offi 
 cers and troops were to be quartered, and ORDERED the samejtfag," 
 &c. 
 
 General Kearny: " I exerted no command whatever over Commo 
 dore Stockton, nor did he exert any whatever over me." 
 
70 
 
 Lieutenant Gray: u Question. Did you bear an order from Com 
 modore Stockton on the 8th of January, in the field, to General 
 Kearny? if so, state the order and all the circumstances. 
 
 " Answer. I did bear an order from Commodore Stockton to Gen 
 eral Kearny on the 8th of January, on the field of battle. The 
 enemy had been observed to withdraw his guns from the height. 
 The commodore directed me to go to General Kearny, and say to 
 him, to send a square and a field piece immediately up on the height, 
 to prevent the enemy's returning with their guns. I went and gave 
 him the order, and on my return to Commodore Stockton, observed 
 the division, or square, of General Kearny moving toward the 
 hill. 
 
 "Question. Did you bear that order to General Kearny in your 
 character of aid-de-camp to Commodore Stockton, the commander- 
 in-chief? 
 
 " Answer. Yes. 
 
 " Question by the judge advocate. Do you recollect the words 
 and manner in which you delivered that order; did you deliver it 
 so that General Kearny must have received it as an order, or merely 
 as a suggestion? 
 
 u Answer. I carried it as an order, in the usual respectful way. 
 How General Kearny received it, I, of course, cannot say. He 
 did not show,, by his manner, that it was disagreeable to him, ac 
 cording to the best of my recollection." 
 
 Finally, I shall conclude this point by showing that General 
 Kearny did not, and could not, at any time, have considered him 
 self the commander of the expedition, or of the troops composing 
 it, and was not so considered by the army officers who had accom 
 panied him into California, and were there. Because, 
 
 1. The place which General Kearny held in the expedition was 
 that which had been before assigned to a'lieutenant of the navy, 
 serving under Commodore Stockton, and this General Kearny 
 knew. This is the testimony of Commodore Stockton: 
 
 a After the forces had been paraded preparatory to ^he march, 
 and I was about mounting my horse, General Kearny came to me 
 and inquired, < who was to command the troops?' I said to him, 
 Lieutenant Rowan, first lieutenant of the Cyane, would command 
 them. He gave me to understand that he would like to command 
 the troops, and after some further conversation on the subject, I- 
 agreed to appoint him to the command, and immediately sent for 
 Lieutenant Rowan," &c. 
 
 2. Because, at the moment of receiving the appointment, he was 
 informed that the command-in-chief was reserved by Commodore 
 Stockton. This is Commodore Stockton's testimony to this point: 
 
 "I immediately sent for Lieutenant Rowan, and, assembling the 
 officers that were near at hand, stated to them that General Kearny 
 had volunteered to take command of the troops, but that I retained 
 my own position as commander-in- chief . I directed my aid-de-camp, 
 and the commissary who was with me, to take a note of "what I said 
 on the occasion." 
 
71 
 
 And to the same effect is the testimony of Lieutenant Gray and 
 Lieutenant Minor, and the certificate of Lieutenant Rowan. 
 
 3. Because both General Kearny, and the officers under him, re 
 ceived and obeyed the orders of Commodore Stockton, in some in 
 stances in opposition to those first given by General Kearny, both 
 on the march and in the battles. The evidence on this point need 
 not be recapitulated. Commodore Stockton testifies to it, Lieu 
 tenant Gray testifies to it, Lieutenant Minor testifies to it, and 
 Lieutenant - Emory testifies to have received and obeyed orders 
 from Commodore Stockton. 
 
 4. Because Lieutenant Emory, attached to General Kearny's 
 dragoon escort, and acting as assistant adjutant general, did not 
 make his official report of losses in action in the expedition to 
 General Kearny, but to Commodore Stockton. True, General 
 Kearny says this was done "without liis knowledge or consent;" 
 but that is only the stronger proof that he was not regarded or 
 lespected a"s the commander-in-chief, even by his confidential sup 
 porters and military family. 
 
 5. Because he admitted to Colonel Russell, as appears repeat 
 edly in Colonel Russell's testimony, that he was serving under 
 Commodore Stockton, and had been serving under him from San 
 Diego. 
 
 6. Because, when I delivered to him, and he read in .my presence, 
 my letter to him of 17th January, in which is this passage : 
 
 "I learned also in conversation with you that, on the march from, 
 San Diego, recently, to this place, you entered upon, and discharged 
 duties implying an acknowledgement on your part or SUPREMACY to 
 Commodore Stockton," he made no denial of it, or objection to it. 
 
 7. Because, on the 16th of January, he applied, in writing, to 
 Commodore Stockton, "advising" and "offering" "to take one- 
 half" of the command, and march to form a junction," &c., ad 
 dressing Commodore Stdckton in that letter as "governor of Cali 
 fornia, commanding United States forces." Bancroft Libr 
 
 On the eighth day of the trial General Kearney testified as follows : 
 
 "Question. Do you know whether the officers of the battalion 
 raised it and marched it under commission from Commodore 
 Stockton ? 
 
 "Answer. I have always 'understood that Lieutenant Colonel 
 Fremont had raised that battalion under the direction of Commo 
 dore Stockton. 
 
 "Qustion. With what commission ? 
 
 "Answer. I never heard of Commodore Stockton conferring a 
 commission on Lieutenant Colonel Fremont, further than having 
 appointed him military commandant of California. 
 
 The object of this inquiry was not, by any means, to get an op 
 portunity to discredit the witness. The object was to ascertain be 
 fore the court that the battalion was enlisted, organized, and 
 officered exclusively under naval authority, and so, of course, sub 
 ject to the orders of the naval commander; and also to ascertain if 
 these facts were not within the knowledge of the witness when he 
 attempted to get command of the battalion, in opposition to Com- 
 
72 
 
 modore Stockton ; both being inquiries pertinent to the issues of the 
 trial, and the facts being what was desired. But the nature of the 
 last answer was such as to leave the original inquiries unsettled, 
 and to open a new one. 
 
 The answer was this: u I never heard of Commodore Stockton's 
 conferring a commission on Lieutenant Colonel Fremont, further 
 than having appointed him military commandmant of California.' 7 
 
 And the new question raised was whether, in fact, the witness had 
 ''never heard" of a matter so notorious in that country. Accord 
 ingly, on the next day, General Kearney having mentioned the re 
 ceipt on the 16th December, 1846, of a certain communication from 
 Commodore Stockton, this question was put : 
 
 Question. Did not Commodore Stockton, in that communication, 
 inform you that Captain Fremont had been appointed by him MAJOR, 
 and Lieutenant Gillespie, of the marines, captain in the California 
 battalioif ? * 
 
 And a copy of the paper having been shown to the witness, he 
 answered : 
 
 Answer. Among the papers sent to me by Commodore Stockton, 
 on the 16th December, was a copy of his letter to the Navy Depart 
 ment, dated August 28, 1846, the second paragraph of which states 
 that he had organized a Californian battalion of mounted riflemen, 
 by the appointment of all the necessary officers, and received them 
 as volunteers in the service of the United States ; thai Captain 
 Fremont was appointed major , and Lieutenant Gillespie, captain of 
 the battalion. 
 
 Again, on the 13th day of the trial, two other papers were shown 
 to the witness, with this question : 
 
 "Were not copies of these two papers, describing him (Fremont) 
 as Major Fremont, among those furnished to you by Commodore 
 Stockton at San Diego. And were not copies of them filed in the 
 War Department by you since your return from California, and 
 after your arrival in this city in September last? 
 
 "Answer. (After reading over the papers,)'! think that copies of 
 these papers were furnished to me by Commodore Stockton. To 
 the latter part of the question, 'were they not filed by you in 
 the War Department since your return from California, and after 
 your arrival in this city in September last.' I see on the papers 
 the certificate of Captain Townsend that I did so ; / think Captain 
 Towns en d is mistaken." 
 
 But on the following day he admitted that Captain Townsend 
 was not mistaken ; that the papers had been put into his hands by 
 Commodore Stockton in December, 1846, and had been filed by 
 him in the war office as late as the 21st September last. From all 
 this, however, it only resulted that he had seen of the appointment 
 of Fremont as major ; that he had "never heard" of it, was not yet 
 disproved. 
 
 This was accomplished in his testimony on the ninth day, when 
 he admitted as follows : 
 
 "Commodore Stockton did inform me, in the conversation al 
 luded to between us, that California had been conquered in July and 
 
73 
 
 August of the same year, (this conversation was held in Decem 
 ber,) and that Major Fremont had gone to the north to raise men,' 7 
 &c. 
 
 In the same connexion, and for the same purpose, the question 
 arose, whether Lieutenant Gillespie, of the marine corps, was not 
 also an officer of the battalion; and the answer of the witness was 
 again such as not only to leave the original question open, but to 
 raise the new one, which brings the subject within this branch of 
 my defence. The witness's answer was as follows: 
 
 " Captain Gillespie had marched with me from San Diego to Los, 
 Angeles, and was serving under me. If his company was with the 
 California battalion I DID NOT KNOW IT." 
 
 It appeared, however, on examination, that the same communi 
 cation (of 28th August, 1846) that informed the witness that Fre 
 mont had been appointed major of the battalion, also informed him 
 that Gillespie had been appointed captain in it. It further appear 
 ed, that in the surgeon's list of killed and wounded in the actions 
 of 8th and 9th January, furnished by Lieutenant Emory to General 
 Kearny, aftid by him sent to the department, Captain Gillespie is 
 reported as an officer of the California battalion; and Captain Gil 
 lespie himself gave the following emphatic testimony: 
 
 "Question. Did you at any time communicate to General Kearny 
 your rank and position in the California battalion? If so, when 
 and where was that communication made? 
 
 Answer. / did communicate to General Kearny my position in 
 the battalion, on the 5th of December, 1846, about one o'clock in 
 the day, in the aiountains about half-way between Santa Maria'and 
 Santa Isabel. When I met him I was at the head of a detachment 
 of volunteers and sailors, I having been ordered by Commadore 
 Stockton to proceed to Warner's Pass, to communicate with Gen 
 eral Kearny." 
 
 These inquiries concerning the raising and officering of the bat 
 talion were to matters connected intimately with the issues of the 
 trial, and the answers of the witness seemed to indicate a con 
 sciousness of it. But I*lo not desire to present them in any other 
 light than as instances of defective and equivocating memory, and 
 in that view affecting the general credit of his testimony. 
 
 Under the same infirmity, of memory I am willing to class the 
 extraordinary facility of omission betrayed by the witness, in his 
 manner, which seerns to be habitual, of half-telling, where whole 
 telling is essential. Thus: On the third day of the trial he com 
 mences an answer in these words: "About the 14th January, 1847, 
 I received from Lieutenant Colonel Fremont a communication, 
 dated," &c. the inference being, of course, that my communica 
 tion was voluntary; the fact (and most important one, too) being, 
 that it was drawn out by no less than four importunate letters that 
 I had before received. Again, in continuation of the same narra 
 tion: "On the day subsequent, viz., on the- 17th January, Lieuten 
 ant Colonel Fremont came to my quarters, and in conversation," 
 &c. the inference being, of course, that I went at my own in- 
 
74 
 
 stance, whereas the fact (most material and relevant, and deciding 
 the character of the interview) turned out, that I went in compli 
 ance with the written request of the witness to see me " on busi 
 ness." Again, same day: "I was first met by a detachment from 
 Commodore Stockton," &c. . . . "It came from Commodore 
 Stockton, to give me information," &c.; the inference being, 
 that it went voluntarily, or was sent by Commodore Stock 
 ton of his own motion: the important fact appearing, however, 
 when Commodore Stockton came on the stand, three weeks after, 
 that it was sent out at the written request of General Kearny, for 
 a party " to open communication with him," &c. So, in .the same 
 letter, making this application, he writes to Commodore Stockton 
 as follows: " Your express, by Mr. Carson, was met on the Del 
 Norte, and your mail must have -reached Washington at least ten, 
 days since" omitting the material fact, that Mr, Carson, in addi 
 tion to being met, was likewise turned back; and leaving the infer 
 ence that he had gone on. Again, in his testimony on the sixth 
 day of the trial, speaking of his position on the hill of San Bernar 
 do, the witness says: " I stated to the doctor and others, that we 
 would leave next morning, which we accordingly did; Lieutenant 
 Gray, of the navy, with a gallant command of sailors and marines, 
 having come into our camp the night previous" the inference be 
 ing, that Lieutenant Gray and his command came voluntarily, or by 
 chance, into the camp; the fact being, that it was a detachment of 
 215 men, sent from San Diego expressly for the relief of General 
 Kearny's camp, and in pursuance of his repeated urgent calis for 
 succor one of them (that by Lieutenant Beale, Mr. Carson, and 
 the Indian) conveyed through the enemy's lines aid an insurgent 
 population, under circumstances of devotion and courage unsur 
 passed, but no mention of which is found in the- official report, or 
 in any part of the testimony of General Kearny. 
 
 I give these as examples, taken only from two days' proceedings, 
 of a vast deal of the same sort of testimony, running through Gen 
 eral Kearny's examination. 
 
 The testimony of General Kearny, in relation to the charges, is 
 the next point to which I advert under this head of my defence. 
 On the sixth day of the trial, General Kearny testifies as follows: 
 
 "The charges on which Lieutenant Cqlonel Fremont is now ar 
 raigned are not my charges. I preferred a single charge against 
 Lieutenant Colonel Fremont. The charges on which he is now ar 
 raigned have been changed from mine. * 
 
 Question (by Lieutenant Colonel Fremont.) Did you give any 
 information to the person who drew up the seventh specification 
 under the first charge, in relation to the cannon? 
 
 Answer. I DID NOT." 
 
 This testimony was promptly communicated to the War Office, 
 by my counsel, for the purpose of ascertaining upon whose (if not 
 General Kearny's) information the charge had been drawn up, as 
 master necessary to be known, unless I would proceed in my de 
 fence against unknown and secret prosecutors ; the adjutant 
 general, by direction of the Secretary of War, returned for answer 
 
75 
 
 the emphatic assurance, that the charges and specifications pro 
 duced to the court " were based upon facts alleged and officially re 
 reported to the department by General Kearny ; and it is not known 
 or understood that any charge or specification has been introduced, 
 based on facts derived from any other source whatever." 
 
 In addition to this positive contradiction by the department, the 
 charges came to the court certified upon their face as being pre 
 ferred "upon information of Brigadier General S. W. Kearny ;" 
 and myself and counsel are further informed, by the judge advocate, 
 that the seventh specification of the first charge is copied literally 
 from the charge furnished by General Kearny in his own hand 
 writing. 
 
 This inquiry into the charges, leads naturally to. the subject 
 upon which that inquiry arose, viz: a certain mountain howitzer, 
 lost by General Kearny at the battle of San Pasqual, and recovered 
 by me at the capitulation of Couenga. The inquiry was not 
 originally made, with any view or expectation that an untrue 
 answer would be given to it, and hence an opportunity arise for 
 contradicting the testimony of the witness. On the contrary, the 
 object of the inquiry was truth. It was to ascertain whether the 
 recovery by me, of a cannon so lost by General Kearny, had been 
 reported by him to the department; and, if not, the argument 
 would be to the impeachment of the temper and motive towards 
 me; for the loss of cannon is always a source of mortification, and 
 its recovery a subject of gratulation and honorable report. It 
 turned out that the recovery had not been reported, but to escape 
 the inference thus raised, the witness pleaded want of sufficient 
 knowledge of the fact. This, then, became the point at issue; and 
 to say that this is an incidental question, upon which the answer of 
 the witness must suffice, whether true or false, is to say thai he may 
 escape from the consequences of one wrong, by committing 
 a greater; that a fact cannot be proved going to impeach his 
 motives if he chooses to deny it with a falsehood. But it is 
 the rule of law and justice that " a man shall not profit by his own 
 wrong; 53 and, therefore, I did n<?t consider myself concluded by 
 the answer of the witness; but, finding by inspection of the 
 charges, that the witness (who I had understood was the sole 
 accuser against me) had sufficient knowledge concerning the can 
 non, to impute the having of it to me as a crime, I inferred' that 
 he ought to have had sufficient knowledge of it, to report the 
 gaining of it to my credit. Hence, I continued the inquiry with 
 the following question: 
 
 "In the seventh specification, under the first charge, you charge 
 Lieutenant Colonel Fremont with refusing to give up two cannon 
 which had been brought from Fort Leavenworth, and which were 
 then at San Gabriel. Will you state what cannon they were, how 
 they were brought from Fort Leavenworth, and how they got to 
 San Gabriel?" 
 
 And hence arose the sweeping declarations already examined, 
 that these charges "were riot his;" that they "had been changed 
 
76 
 
 ^ i 
 
 from his;'' and that he " did not" furnish the information concern 
 ing' the cannon on which the seventh specification of charge first 
 was drawn up. After which he continued his answer in these 
 words: 
 
 4 
 
 u The two howitzers, however, referred to, are the two howitzers 
 brought by the first dragoons from Fort Leavenworth to California; 
 one of them, as was previously stated, was lost at San Pasqual; 
 the other we took with us. 
 
 Question. Do you know that one of those cannon was the one 
 lost by you at San Pasqual? 
 
 Answer. I DO NOT." 
 
 Two days after, he comes into court with this " explanation:" 
 "In reading over, in the papers this morning the proceedings of 
 Monday, I find the following question put to me by the accused, 
 and my answer^thereto, as follows: 
 
 Question. Do you know that one of those cannon was the one 
 lost by you at San Pasqual? 
 Answer. I do not. 
 
 <C I have now to explain, that I had no personal knowledge of if; 
 I had a knowledge of it FROM AN OFFICIAL REPORT made to my staff 
 officer BY LIEUTENANT COLONEL COOKE." 
 
 Now, on'this point, General Kearny is contradicted by his own 
 witness; for Lieutenant Colonel Cooke testifies to having received 
 from General Kearny orders in relation to the cannot before he 
 ever made any report on the subject. 
 
 This is from Major Cooke's testimony in chief, delivered on the 
 fourteenth day of the trial: 
 
 "On the 24:th of March, I rode out from Los Angeles to the mis 
 sion of San Gabriel, accompanied, &c. I called on Captain Owens 
 at his quarters, and shortly after asked to look at the artillery. 
 He showed them to me in the court of the mission, and I observed 
 two mountain howitzers, which I believed had been brought to that 
 country by the dragoons. I had received verbal instructions from 
 General Kearny, by Captain Turner, to h'ave them turned over to 
 company C, under my command; and had, before I left town, or 
 dered mules and drivers to be sent after THEM. 
 
 This relates to occurrences of the 24=th of March, whilst the 
 " verbal instructions" referred to, afterward ascertained to be writ 
 ten memoranda, were issued from Monterey about the 1st of March, 
 and the only report made upon the subject by Major Cooke wa of 
 March 25. 
 
 This is Major Cooke's testimony to these points, (eighteenth day 
 of the trial:) 
 
 u Question. Is your letter or report, of the 25th March, which was 
 read in your cross-examination on Thursday, your official report to 
 your superior officer? and does it refer to the same events as those 
 narrated in your testimony? and did you ever make any other 
 
77 . 
 
 official report of those occurrences to General Kearny, or to any 
 other officer for him? 
 
 Answer. It was my official report. It refers to the same subject 
 as my evidence in chief. I do not remember having made any 
 OTHER report to him or to any one else. 
 
 Question. Did you have any verbal or special order in relation 
 to ordnance, arms, &c.? 
 
 Answer. I had some verbal orders in relation to arms, communi 
 cated, however, in the form of written memoranda. * ' * * 
 I have them not here. I lost all my papers by an accident, &c. 
 
 Question. Will you state the tenor of those orders and instruc 
 tions, giving the words as far as possible, and whom they -came 
 from? 
 
 Answer. THEY WERE FROM GENERAL KEARNY. I was directed, 
 I believe, to put the HOWITZERS in charge of the dragoons. * 
 
 I received, at the same time, an official 
 letter from General Kearny." 
 
 A copy of this official letter was produced the next day, and 
 found to be dated at Monterey, March 1, which fixes the time of 
 those "verbal orders" or "written memoranda." Finally, on the 
 nineteenth and twentieth days of the trial, Major Cooke again 
 testifies, concerning the same verbal instructions, as follows :. 
 
 "Under ordinary circumstances, I should have deemed it my duty 
 to have enforced my orders in relation to the artillery, f (funded on 
 the verbal orders of the general. The verbal orders alluded to 
 might be considered as giving higher importance, in my view, to the 
 object to be attained^ which was to turn over to company C, 1st 
 dragoons, the two mountain howitzers." 
 
 From all which, it results that General Kearny's first information 
 concerning the cannon was not received through Major Cooke's 
 report, but that the report resuUed, in fact, from orders about the 
 cannon, given by General Kearny several weeks before the report 
 was made. 
 
 The first great allegations, then, made by General Kearny to 
 escape from the Original simple and comparatively innocent fact 
 supposed by the inquiry concerning the cannon, are contradicted, 
 in their whole essence, by the official assurance of the Secretary of 
 War, by the charges as they are certified by the judge advocate to 
 the court, and by the original draft of accusations against me in 
 General Kearny's own hand; while his subsequent "explanation" 
 to escape from this labyrinth, by attempting to draw a distinction 
 between personal knowledge and official knowledge, involves him in 
 the repudiation of his own orders, and in a doable contradiction 
 with himself and with Major Cooke, his own witness. 
 
 I think it proper, I think it my duty, to introduce here some 
 maxims of the law, which, I am advised, are recognised in all 
 courts. 
 
 "Where it turns out that a witness's testimony is corruptly false 
 in any particular, it should be entirely disregarded by the jury." 
 "A witness's credibility, being seriously impeached' by written. 
 
78 
 
 or other plain, deliberate contradictory statement by him, and not 
 supported, ought, it would seem, to be entirely rejected." 
 
 "But where a party speaks "to a fact, in reference to which he 
 cannot be presumed liable to mistake, if the fact turn out other 
 wise, it is extremely difficult to exempt him from the charge of de 
 liberate falsehood; and courts of justice, under such circumstances, 
 are bound, upon principles of la.w, morality and justice, to apply 
 the maxim, falsus in uno, falsus in omnibus" FALSE IN ONE, FALSE 
 IN ALL. 
 
 (See Phillipps on Evidence, v. 3, pp. 39,7 and 772.) 
 v / 
 
 Mr, PRESIDENT : The length of this defence precludes the neces 
 sity of recapitulation. I omit it, and go to the conclusion with a 
 few brief reflections, as pertinent, I trust, as they are true. 
 
 I consider these difficulties in California .to be a comedy (very 
 near being a tragedy) of three errors: first, in the faulty orders 
 sent out from this place; next, in the unjustifiable pretensions of 
 General Kearny; thirdly, in the conduct of the government in 
 sustaining these pretensions. And the last of these errors I con 
 sider the greatest of the three. 
 
 Certainly the difficulties in California ought to be inquired into; 
 but howl Not by prosecuting the subordinate, but the principals; 
 not by prosecuting him who prevented, but him who would have 
 made civil war. If it was a crime in me to accept the governor 
 ship from Commodore Stockton, it was a crime in him to have be 
 stowed it; and, in either event, crime or not, the government which 
 knew of his intention to appoint me, and did not forbid it, has lost 
 the right of prosecuting either of us. 
 
 My acts in California have all been with high motives, and a 
 desire for the public service. My scientific labors did something to 
 open California to the knowledge of my countrymen; its geogra 
 phy had been a sealed book. My military operations were con 
 quests without bloodshed; my civil administration was for the 
 public good. I offer California, during my administration, for com 
 parison with the most tranquil .portions of ;the United States: I 
 offer it in contrast to the condition of New Mexico during the same 
 time. I prevented civil war against Governor Stockton, by refus 
 ing to join General Kearny against him: I arrested civil w r ar against 
 myself, by consenting to be deposed offering at the same time to 
 resign my place of lieutenant colonel in the army. 
 
 I have been brought as a prisoner and a criminal from that coun 
 try. I could return to it, after this trial is over, without rank or 
 guards, and without molestation from the people, except to be im 
 portuned for the money which the government owes them'. 
 
 I am. now ready to receive the sentence of the court.