would have been inconsistent to go on and take St. Augustine.

dians were furnished by the fort there with ammunition and means of offence against the United States. This precedent alone is sufficient to justify me in all Such are the principles which have regulated our that I have done- In 1817, the establishments at military operations against the British, the Indians Amelia Island and Galveston were forcibly suppress- and the pirates of Barbary. Having stated these facts, ed. Amelia Island was in undisputed possession of it may be useful to put the court in possession of the Spain-Galveston was in the possession of Spain, but circumstances under which these orders were given within the contested limits of Louisiana. The for- and the subsequent transactions which took place; mer was taken possession of by adventurers, pre- and here I may appeal to the able and elaborate justitending some authority from one of the South Ame-fication given by Mr. Adams, in his despatches to our rican states. They had committed no depredation ministers at Madrid. These are complete on this on the commerce or possessions of the United States, head; and I have now only to enquire whether, in but the president apprehended that they would be 1823 and 1824, the government of Spain stood toward the means of establishing an extensive system of the United States in the same obligation, or greater, bncaniering; and, in anticipation of piracy, he suppress-than in the Indian war. ed the establishment by force of arms and military I have adverted to the act of congress putting the occupation. [To illustrate this statement, the coun- squadron under my command. Pirates are declared sel quoted from Niles' Register, 13 vol. p. 237, a part to be the enemies of the human race-enemies of the president's message to congress, and another equally to all men; all men are justly considered as message in January, 1818, idem, p. 238.] In these against them. Here there is no belligerant and neumessages the principle is laid down, that the weak-tral; all are belligerant; nor is there any attribute of ness of Spain was no reason why the United States war that does not apply to them. It is unnecessary, should submit to injuries, through abuses of her ter-in support of this doctrine, to refer to authorities; it ritorial rights; the jurisdiction of Spain ceasing at is fully laid down in my instructions, though in a the point where her weakness failed to maintain her condensed form. [Here he quoted the following authority. The principle is thus broadly enumerat- passage from the letter of secretary Thompson, on ed, which justified the United States, as a belligerant, whose legal acumen and attainments he passed a destanding in danger of injury, in taking forcible means served compliment, dated 1st February, 1823:] to prevent it. The principle is more fully illustrat- "You will announce your arrival and object to the ed and confirmed by the proceedings of gen. Jack-authorities, civil and military, of the island of Cuba, son in Florida. The war there consisted of a mere defence of our frontier, from the incursions of certain savages, called Redsticks or Seminoles. It was soon found necessary to depart from the strict line of defensive operations, and to pursue the savage to his fastnesses within the Spanish territory.

and endeavor to obtain, as far as shall be practicable, their co-operation, or, at least, their favorable and friendly support, giving them the most unequivocal assurance, that your sole object is the destruction of pirates.

"The system of piracy which has grown up in the This was the ordinary case of irregular Indian hos-West Indies, has obviously arisen from the war betility, without any declaration, or other concomi-tween Spain and the new governments, her late protant of war, more formal than what subsisted in that vinces in this hemisphere, and from the limited presented against the pirates in the West Indies and force in the islands and their sparse population, Gulf of Mexico. These savages are pushed, by their many portions of each being entirely uninhabited victorious pursuers, to the vicinity of the regularly and desolate, to which the active authority of the garrisoned Spanish fortress of St. Marks; which, be-government does not extend. It is understood that ing well ascertained by the general to be a resort for establishments have been made by parties of these the savages, where they found aid and comfort, was banditti in those uninhabited parts, to which they Entered by our troops by violence, and occupied-carry their plunder, and retreat in time of danger. see Niles' Register, 15 vol, page 311, 312.) It cannot be presumed that the government of any A British subject domociliated under the protec-island will afford any protection or countenance to tion of the Spanish law, who had acted as a spy and such robbers. It may, on the contrary, confidently incendiary, was executed. The general then car be believed, that all governments, and particularly ried his victorious arms to Pensacola, which he those most exposed, will afford all the means in their seized without opposition; the garrison having re-power for their suppression. Pirates are considered, treated to the neighboring fort of Barancas, which was fiercely attacked, and, when on the point of being stormed, capitulated. Thus in possession of the capital, and all the strong places of the province, it was treated as a conquered country; a civil and military governor was appointed; and every arrangement usual after a conquest.

All this is explained, and most amply vindicated, not as an act of hostility against Spain, but as done virtually with her consent: it being presumed that her weakness, and not her will, had tolerated the hostile acts complained of by general Jackson. Thus become possessed of one entire Spanish province, its capital and forts, and thinking the Indian hostilities effectually checked, the general retired from the field. But hearing fresh accounts of renewed or threatened hostilities from the savages, and abuses of Spanish territory, to our prejudice, he ordered gen. Gaines to take St. Augustine, the capital of another province. But as gen. Gaines was on his march to execute this order, he was stopped by orders from the war department, not from any disapprobation of what had been done, but only in consequence of an arrangement with the Spanish minister to restore St. Mark, Pensacola and the Barancas; after which, it

by the law of nations, the enemies of the human race. It is the duty of all nations to put them down; and none, who respect their own character or interest, will refuse to do it, much less afford them an asylum and protection. The nation that makes the greatest exertions to suppress such banditti, has the greatest merit. In making such exertions, it has a right to the aid of every other power, to the extent of its means, and to the enjoyment, under its sanction, of all its rights in the pursuit of the object. In the case of belligerants, where the army of one party enters the territory of a neutral power, the army of the other has a right to follow it there.

"In the case of pirates, the right of the armed force of one power to follow them into the territory of another, is more complete. In regard to pirates, there is no neutral party; they being the enemies of the human race, all nations are parties against them, and may be considered as allies."

It is unnecessary to go further-here is the doctrine and the illustration, and in reference expressly to those against whom I was to act; but I did not rest in this--in compliance with what I deemed the spirit of my instructions, I established an understanding with the local governments, for which I refer the

court to my official correspondence with them, under great object of the expedition to be defeated by a date of 2nd December, 1823. I lost no time in es- strict and overstrained construction? Were not iny tablishing a specific understanding with the govern- orders to be explained by precedent and contempoors of the Spanish islands-they recognized the rary practice? The court will see, by reference to meritorious character of the war we were carrying the reports from my squadron, accompanying the on, and promised every aid and co-operation, on president's message, of 2nd December, 1823, the arts their part, to advance it: thus voluntarily making of the pirates in evasion-their disguises as fisherthemselves parties, as allies or co-belligerants. The men, as drogers, as pedlers, &c. &c. To detect these case is perfectly clear. The United States, repre- disguises, resort must be had to a thousand different sented by officers, are bound to treat the Spanish sim- ways. At various times officers and parties of men ply as allies transgressing their duty. It may, per- landed in Cuba-they found persons, under various haps, be thought that there is a difference in this re- disguises-they carried on hostilities against themspect between the power of the president of the they even burned whole villages. A village was thus United States, and those who act in subordinate com- destroyed to leeward of Baya Honda. Lieutenant mands. It has already been stated that we act not Kearney landed in Cayo Blancho, destroyed the huts against Spain, but simply repel the attack of the he found there, and burned the houses. Lieutenant enemy through her. The president of the United Sloat had also an action at a place in Porto Rico, States has, of himself, no authority to make war. called Boca del Inferno-how these cases, (which all That power is delegated by the constitution to con- received the implicit sanction of the government), gress alone. The president may, indeed, under the are to be distinguished from the landing at Foxarauthority of the act of congress, giving him that do, I cannot perceive. I landed there in search of power, call out the force of the nation to suppress in- pirates-upon information the most credible, and surrections, and to repel invasions; in the exercise which I should have been criminal if I had disreof which last power, almost all the belligerant ope-garded, that such persons were then there. rations of the country, since the existence of the present government, have been carried on. The exercise of the belligerant right, now in question, is, in no degree, the exercise of a jurisdiction of peace or war: but a merely incidental right of actual war, and as fully vested in the lowest subaltern, to whose hands the arms of our republic are committed, as in the president himself. The only difference is, that the president, being commander-in-chief, may restrain or modify, at pleasure, the exercise of any belligerant right, by those in command under him; but, in absence of such restraining order, these high belligerants rights exist, to their whole extent, in the person of the commanding officer, whatever his rank.

This brings me to the question, whether, in my operation upon Foxardo, I have transgressed my orders? Before such a transgression can be proved, some order must be shewn, forbidding me to exercise the otherwise clear right, then vested in me, of executing that highly expedient, necessary, and, in all its public results, most fortunate measure.

The court cannot but have remarked the abundant evidence on which I drew the conclusion that Foxardo and its vicinity was the haunt and refuge of pirates. A party of these wretches had committed depredations on the property of an American citizen at St. Thomas's. An officer of my squadron, who went to recover that property, and to detect and punish the depredators, was insidiously enticed within their power, and afterwards seized and maltreated.

Could I suppose, was it my duty to presume, that this had been done with the knowledge and approba tion of the local government of Porto Rice? I had established a friendly correspondence with the local governments both of Porto Rico and Cuba, (as will appear by reference to the president's message to congress and the report of the secretary of the navy), and was aware that this habit in the pirates, of form ing establishments on land, in the less frequented parts of the islands, was well known to these governments; could I then conclude that what happened af Foxardo was sanctioned by them? If there is any My justification requires no order either command-thing specific in the charges at all, it is, that I did not ing or authorizing it. The incidental power, to the pay proper respect to the local government of Porto fullest extent, was inherent to my command. My Rico. But with whom did I meet, when I entered the instructions of the 1st February, 1823, are to be look- bay of Foxardo? With an undefined, unknown, uned to, not for evidence of my authority, but for a pro-armed, uncharacterised mob-who, without waithibition, express or implied, against the exertion of ing for a word even of parley, commenced acts of it. [ere he quoted the instructions.] Now I con- hostility against me. They were wholly the aggrestend not only that there is the absence of any such sors-no injury, no act of hostility whatever, bad prohibition, but that there is a positive injunction on been committed by my squadron, or by any person me to proceed as I did. If I had neglected, I should on board of it, when they commenced training their not only have basely betrayed the high and sovereign guns upon my vessels. What conceivable reason rights of war, upon which the glory and the safety of had I to think that these were the lawful agents of the nation mainly depend; but should actually have the local government any more than lieut. Carson, violated my instructions, by a course of conduct di- lieut. Kearney, or lieut. Sloat, had to suppose whom rectly opposite to that which is now said to have con- they found, and whose establishments they burnt to the stituted a violation of the same instructions. Now, ground, were lawful agents of government? I knew Ist. in regard to those parts of my instructions which that the pirates were always to be found under the command what is to be done. Here he quoted at guise of honest men-and I leave it to the court to large.} say whether, when I approached Foxardo, a place notorious throughout all the vicinity as a principal haunt of banditti, when I found a motley collection of ill looking wretches armed, and training their guns upon me, engaged in unprovoked hostility against a force known to be engaged in the suppression of piracy, I was bound to believe them to be act1. We must resort to the reason or final cause ing under the authority of the local government of which was had in view by the expedition. What Porto Rico. Surely, I was justified in landing and was this final cause? The suppression of piracy, dispersing them-indeed the only doubt which cros and the protection of the commerce and the citizens sed my mind was, whether I did enough in so doing? of the United States, collectively and individually. I only deprived them of the power of doing injury, Whatever would conduce to this end, I was not only and then to prosecute further inquiry, marched a few authorized but bound to do. Next, I inquire, was the miles up into the country. Here, indeed, I found

In interpreting these orders, I shall lay down certain general rules which prevail in the construction of all similar instruments. The court will perceive that these instructions command duties to be performed. They require an exertion of power, and they lay down limits for its exertion.

certain officers of the place-but, so far from claim- at length.] I will use to my instructions the same ing to be the local government of Porto Rico, or acting process of illustration which was applied to those under its sanction, they excused themselves for the given to gen. Jackson concerning his expedition in abuse of my officer by alleging that they had acted the Seminole war; and if it shall appear, that the under an external compulsion in so doing-and by powers granted to him, were less, or at least not hinting that there was something mysterious and un- greater than those to me, it will follow, that I was divulged in the necessity which induced them to act bound to expound the terms of mine as going to the contrary to their duty. So far then as the evidence same extent with his: for so great an opprobium is goes, there appears to have been no violation of the not to be supposed as that, when the government has authority of the government of the island; but it ap- given the same powers to two different officers, and pears, on the contrary, that that government was in they exercise these powers to the same extent, the no wise concerned in the affair. I was warranted to one shall be excused and praised while the other is acbelieve, that those whom I found at Foxardo were act-cused and condemned. Let us, then look at the termis ing against its authority, not by its authority-that that under which gen. Jackson invaded and took possesauthority was exerted to suppress piracy, not to en- sion of two whole provinces of the Spanish domicourage and defend it; and, therefore, no matter to nions, produced a state of things which he himself what extreme I had proceeded against those persons, says was equivalent to an actual cession of those prothe circumstances were such as to have justified me. vinces, and established, not only military, but civil But let us look to subsequent events for a still government there. By reference to the memorial clearer illustration. Has the acts of the local au- presented by that officer to the senate, in reply to a thorities at Foxando ever been espoused and vindi- report of a committee, it will be seen that an order cated by the government of Porto Rico? One would had been given to gen. Gaines, who preceded him in. imagine that if those authorities had been warranted the command, authorizing him to pursue the Indians in what they did by their superiors, the acts of the over the boundary line of the United States into the squadron would have brought down the indignation territory of Florida-but if they took refuge under both of the people and the government of the island: any of the fortresses, belonging to the Spanish gobut no such thing-so far from it, they are followed vernment, he must there arrest the pursuit, and by the most lively and distinguished applause. forthwith acquaint his government. This order it When an officer of the squadron soon afterwards, visit was maintained by the committee, was equally binded some of the neighboring towns of Porto Rico, he ing on general Jackson, his successor in command. and his party were received and treated with marked But general Jackson, disclaiming this inference, and respect and hospitality. The governor of the island in opposition to it, quotes and insists on his own geholds the most friendly correspondence with lieut.neral orders-especially on that clause in them Sloat. The people and the authority of Ponce, a where he is directed to take all proper means to bring town not 40 miles from Foxardo, though they knew the war to a speedy and effectual issue. He justifies that one of the officers was the same person whose his whole course in entering the Spanish provinces, treatment at Foxardo had occasioned the visit of the attacking and storming the forts, with all the other squadron to that place, received him with distin- acts which followed these, as being the means best guished kindness-gave him a public dinner and adapted to accomplish the general object of his inshowed the strongest solicitude to acquit themselves structions, by bringing the war to a speedy and effecof having had the least connivance with the conduct tual issue. He does not even pretend that his instrucof the neighboring authorities. And it is worthy of tions contained any express order to seize on St. remark, that the minds of people at St. Thomas, at Mark's, Pensacola or the Barancas-but justifies the Porto Rico, and throughout the neighborhood gene- whole on the broad principle of self defence. rally, were simultaneously impressed with the same Another document of interest, in expounding geneconviction of the necessity and propriety of what I ral Jackson's particular authority for his acts in was about to do. I preserved, myself, the most guard-Florida, and of the more interest on this occasion, ed silence as to what were my intentions in going to because it issues from the same high authority and Foxardo, yet all expected and all approved what uses the same terms as my own instructions. [Here took place there; a fact which could arise only from the council quoted from Niles' Register, vol. xv, p. their own convictions of its being proper and neces-213, the instructions issued by the president to geu. sary. I had not, at the time, the most distant cause Jackson, laying stress on the expression that the auto conclude that I was violating the authority of the thority of Spain was not felt beyond the limits of Aulocal government; I had not afterwards, nor have I gustine and Pensacola-the rest of the territory beThere were not, as in the case of gen. Jack-ing filled with wandering Indians, and persons of all son's entry of Florida, any vehement complaints nations, &c. He quoted, also, general Jackson's refrom the government of Spain, that her territory had marks in vindication of his conduct, in which he been violated; no official complaint of any kind has maintains, that, by entering the province, &c. he had ever been made, so far as the public know: It cannot committed any encroachment on the rights of not, therefore, be said that, instituting the present trial, the government has acted from any necessity arising out of the preservation of peace with Spain, or giving satisfaction to the government of Porto Rico.

now.

Spain; that the officers of the Spanish forts were hostile to the government of the United States, and that he should have totally failed in the object of the expedition, if he had not deprived the Indians of that protection in which they relied, and by which they were emboldened to persevere in their depredations. The readiness with which the provinces were surren dered, as soon as there was a proper force to receive and defend them, proved, that no violation was intended of our peace with Spain, &c. The counsel also quoted, with emphasis, the order to "respect the Spanish authorites wherever they exist and are main

Having thus shown, that the act for which I am accused was in consistency with the final cause for which the expedition was fitted out; and, also, that it was in accordance with preceding and with contemporary practice, in the cases of general Jackson, lieutenants Kearney, Carson, and Sloat, I will now apply to my instructions another rule of interpretation, applicable to every instrument in writing, what-tained."] ever, viz; the comparison of any given passage with It now remains to look at the circumstances under the context preceding and following it, and with the which the instructions to general Jackson, and those circumstances under which it was written. [In il- to myself, were respectively given, and to compare lustration of the propriety of such a rule, the learned the authority by which he entered Florida and I Foxcounsel referred to Grotius, II, 145, which he quoted lardo. It will be perceived that this authority was

limited even in stronger terms than mine. He is some deformity. The alledged aggravation is, that! forbidden to enter Florida unless under certain spe- transgressed where the local government existed and cial circumstances which rendered it indispensable; was felt-but was I not informed that the local gobut I was not forbidden to land on the Spanish terri-vernments were in co-operation with my own efforts? tory. General Jackson was ordered to respect the that they ranged themselves on my side as allies? and local authority wherever it existed and was maintain- could I conceive those wretches, with cannon on the ed. I was ordered to respect the local government rocks of Foxardo, to be the local authorities? could I "wherever it exists and is felt." Thus the only dif- respect them as such When I approached the spot, ference between our orders in this point, is to be found I learned that the alcalde, a very inferior magistrate, in the difference between a government's existing and and one who by no means represents the regular gobeing maintained, and its existing and being felt. There vernment of the island, was either in actual league were only these two restrictions: 1st. That the go- with the pirates, or else he was overawed by them, (it vernment should exist, and that it should be felt. In is immaterial which), that the authority under which this language something else is evidently intended it was pretended that he had acted, was that of the than a mere formal exercise of sovereignty. It does pirates themselves. What was the presumption, I not refer to a sovereign de jure and in name only; but was naturally lead, nay compelled to draw? It was to that which exists to some practical pu pose. But this-that mob and magistrate were all allied together; what was the very purpose for which such a govern- and the matter then comes simply to this. I was ment should exist? So far as I was concerned, this ordered to respect the local government where if expurpose was to restrain pirates and aid me in the isted and was felt; I had all reason to conclude that suppression of piracy. Should I then suppose, was these persons were acting against it-they were cerI bound to beleive, that the government, in the sense tainly committing hostilities on an American squadof my instructions, "existed" and "was felt," where ron who were allies of the local government. I, those claiming to be its organs, acted in the very face therefore, asserted and enforced the authority of that of such a purpose? Was I bound to respect as the government against its own corrupt citizens, who local government of Foxardo a mob on the rocks of were engaged in violating their duty as allies. the harbor who were training guns upon me? Could I view as such those who had inveigled and perfidiously sion of my confident expectation that the court will I conclude this part of the subject with the expresseized my officer? Could I beleive this, when the uni- be of opinion, that I was not only justified in going as versal opinion throughout the neighborhood was, that far as I did, but bound to do so-that, had I forborne, Foxardo was the notorious haunt of pirates-their I could not have escaped with impunity-or had I hiding place, their refuge, from whence they sallied forth to commit depredations on the high seas, and prey upon the unprotected commerce of my country? It seems, then, very clear, that the restriction of the government's existing and being felt, was not greater restriction than that in the instructions before issued Hitherto I have confined myself to the inquiry, what I shall now take another view of the subject.to gen. Jackson. The sense of this expression may my instructions authorized me, what they they be still farther illustrated by referring to a former forbade me to do. But, suppose I have been wholly message of the president of the United States to con- mistaken in my interpretation of them; and that, congress, at the same session with that last quoted.-trary to my better knowledge, I was bound to presume Here he read a passage in which the president speaks of the government of Spain over part of her provinces being "scarcely felt," &c.]

been acquitted by others, my own conscience would have condemned me as having betrayed the high trust and endangered the important rights and privileges committed to my keeping.

that all the persons I found at Foxardo, were acting under the authority of the local government-What bedience of which a court martial has power to take follows? Have I committed any act of military disocognizance? I contend that the general instructions, issued by the government, are not included in the meaning of that article of war which speaks of the disobedience of the orders of a superior officer; that article has respect to military orders, proceeding from a military source, and does not apply to the government of the United States.

This mode of describing the local government which I was to respect, is then to be interpreted by the language used by the president himself whose words I am bound to observe with due regard. He describes the cessation of the Spanish government in Florida as a state of things in which it was "scarcely felt." It was felt, however, at that very time in the fortress of St. Marks-for that fort was able to support a seige, and did not capitulate but by an instruiment containig 14 distinct articles. I ask, was the over its naval and military officers is two-fold; it may local government "felt" to this extent at Foxardo punish them by a court martial, or, in a more sumThe power of the government of the United States when I went there? The president and his secretary mary manner, by recalling them from their command; both issued a justification of general Jackson in going but if there be a true distinction between orders isto St. Marks. Had I gone to St. Johns, the capital-sued by government and those by a superior officer, had I beseiged the fort there-had I compelled the then offences against the former do not fall to be tried governor to subscribe a just agreement to restrain by a court martial-but by an act of the government. these inhuman wretches, (far worse than any savage itself. That government, when it has given instrucwho roams the desert), I perhaps might also have tions to an officer, is itself the best judge how far he been praised. But I stopped short-I stopped at a has obeyed them; and if he has in any degree departpoint where the government was far less felt than at ed from them, it is best able to determine with what St. Marks: for going even thus far I am called to ac-motive he has transgressed. Now, it is a thing very count General Jackson went far beyond me, and he is vindicated and applauded.

I have before adverted to the various disguises employed by the pirates, I use this fact to justify the conclusion that I formed, that Foxardo was, in truth, a haunt of these freebooters--that the government of Spain was there only nominal, being, in effect, superseded by piratical power and influence. I was not bound to respect these disguises. I knew that such existed that they were common-but I held it my duty to seize these modern proteuses, to reduce them to their natural shape, and expose their loath

intelligible to all men how an officer may disobey a is not so possible to understand how he can directly disobey an order which clothes him with discretionary positive order given him in a diffierent case; but it power, to be executed in a variety of cases. He may mistake but cannot disobey; if, from a corrupt motive, from malice, or evil intent, he violates his instructions, he commits, I own, a high offence; but whether this is strictly a disobedience of orders need not now be particular discussed, as it is not even surmised, so far as I understand, that I have acted from any such motives in what is now laid to my charge; it is,

on the contrary, admitted, as I apprehend, that I did ¡ed this court, from a tribunal of criminal jurispru act from my best judgment. Refer again to the dence, into a sort of master of ceremonies, to sit in terms of my instructions and see if they are in terms judgment upon points of good-breeding, and to pro so positive that I may be said to have disobeyed them?nounce on the delicacy of certain habits and apSee if they do not confer upon me a wide discretion pearances.-His own ideas, and the practice of mi-refer to the clauses which state the end and purpose litary law in conformity to them, was, that every miof the expedition entrusted to me-see if all those litary offence brought before that court must be declauses, which lay down the doctrine of the law of termined by some positive and established rule of nations and of war, and all those which leave me to action, and designated and defined by some specific decide whether the local govenment, in any given in- law. For reasons which had been suggested by his stance, exists and is felt, do not necessarily imply the counsel, the accused had, in an earlier stage of the exercise of a discretionary power? Now there is no proceedings, been induced to yield to the force of precedent where a discretionary power has been those observations which lay against this charge and given, and he who received it is afterwards called to its specifications, on account of the vague and indeanswer for disobedience of orders-disobedience of finite terms in which they were expressed. His oborders means this, and nothing else than this, either jections, however, had met with a fate which they illthe doing what is positively forbidden-the omitting deserved. For the most part, they were met by the of what is positively commanded, or the wilful and argumentum ad hominem-and as he considered that, corrupt pervertion of a discretionary order. in the imputations which this reply appeared to have cast upon him, his credit and character were more or less involved, he should now take an opportunity to correct some of the strange and unsustainable opinions which had been thus induced.

The learned counsel having thus closed the first head of the defence, and feeling much exhausted, suggested to the court the propriety of an adjourn ment till to-morrow, but professed himself ready to proceed if the court so determined.

The court thereupon adjourned to to-morrow morning at eleven o'clock.

CONTINUATION OF COM. PORTER'S DEFENCE.
FROM THE NATIONAL JOURNAL.

Saturday, August 6.-The court met at 11 o'clock. CHARGE 2d. "Insubordinate conduct, and conduct unbecoming an officer."

In the first place, there had been much zeal displayed in the manner in which was urged the tendency of those objections which he had consented that his counsel should exhibit, to make a compromise with honor. The natural inference was, that he would be content to obtain an acquittal of the charges preferred against him, at some cost of honor, There appeared to him to be something illiberal in this insinuation. He had always understood that it Specification 1-That he wrote and transmitted to was never the duty of a prosecutor to pursue an arthe president of the United States "a letter of an in-gument of this character. The law was that on which subordinate and disrespectful character, on the 17th April, 1825," and to the secretary of the navy, "various letters of an insubordinate and disrespectful character, viz: on the 30th January, 16th March, 13th April and 14th June, all in the year 1825; thereby violating the respect due to the head of the depart ment, impairing the discipline of the service, and setting a most dangerous and pernicious example." Specification 2d-The publication in commodore Porter's pamphlet, of the proceedings of the court of inquiry, after the court had terminated its inquiries, and had transmitted its report to the secretary of the navy, and before the executive had authorized the publication of the proceedings.

the prosecutor was bound to rely, and it was usual for him to submit himself to the powerful friendship of the law. If any odium attached to the arguments which had been urged at any former stage of the proceedings, he was content, himself, to bear it, as well as any which might accompany the present. He had felt sore and indignant at the illiberal inferences which had been drawn from the course he had adopted, but had determined to postpone any commentary upon them, until the moment when he would be allowed the full latitude which his defence would of fer. He had thus far challenged the utmost industry to rake up against him materials for crimination; and he should not now shrink from the task of meeting them.

Specification 3d-"An incorrect statement of the proceedings of the court," in the same pamphlet. Another charge, from which he was desirous to Specification 4th--The insertion in the said pamphlet, clear himself, was the supposition which had been of "various remarks, statements and insinuations, thrown out, that he had been anxious to get rid of not warranted by the facts, highly disrespectful to the charges, and had made some kind of application the secretary of the navy and said court of inquiry." to have them withdrawn. The only ground on which Specification 5th-That he "did, in the same publica- this supposition could, by any possibility, have been tion, [the pamphlet before referred to], without any founded, was an expression towards the close of the authority or permission for that purpose, make pub-argument of his counsel, in which he had made use of lic, official communications to the government, and official correspondence with the government; and, on other occasions, between the 1st October, 1824, and the 15th June, 1825, without authority or permission therefor, make public, orders and instructions from the government, and official correspondence with the government."

the phrase "if the judge advocate was of opinion that the charge could be sustained, although he hoped that he would now consent to abandon it." Ile knew of nothing else which could have given occasion for the impression to which he referred; and he protested against any thing in this remark, being construed into a request for mercy. In reply to this supThe counsel for the accused then proceeded with posed solicitation, the judge advocate had replied, the defence The second charge and its specifica- that he had no discretion which he could exercise on tions had been to him a source of no inconsiderable the subject, and, of course, no power to withdraw the difficulty. He had been, throughout the whole of the charge; that it emanated from the government and investigation, at a loss to determine how to treat by the government only could it be withdrawn. He them. He had come to the conclusion that they con- neither imagined, nor had he wished, by any exprestained no charge of any crime which could be brought sion he had used, to create a belief that, in addition under the cognisance of a court martial. There was to the arduous duties which he had to discharge, this nothing which could be construed into an imputation discretionary power has been added to the weight imof guilt: nothing calculated to attach to his name posed upon the learned judge advocate. any thing of a dishonorable or immoral character. Again, there was a misunderstanding with respect They had been introduced by a strange abuse of to another part of the proceedings, which he was determs. He objected to a phraseology which convert-sirous to correct. A misapprehension seemed to rest