History of California, Volume XXII, Part 48

Author: Bancroft, Hubert Howe
Publication date: 1885-1890
Publisher: San Francisco, Calif. : The History Company, publishers
Number of Pages: 816

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25 Frémont's Court-martial, 103-4, being Kearny's testimony. Sherman, Mem., i. 27, was sent to F. with a notice that K. desired to see him, and F. came back with S. to the general's quarters. This was probably on the 10th.

26 May 13th, Kearny to Adj. gen. Jones. Cal. and N. Mex., Mess. and Doc., 1850, p. 303. K. also wrote to Benton about F.'s conduct. Court-mar- tial, 41.

27 Testimony of Kearny and Turner. Fremont's Court-martial, 113-14, 149-50.

451

RETURN TO THE STATES.

the same justification, the only difference being that Shubrick, succeeding Stockton, now joined his author- ity to that of the general. For it must be noted that Frémont, so far as the evidence goes, knew nothing of new orders from Washington, and supposed Kearny to be attempting merely an enforcement of the old instructions, relying on an increase of troops and the commodore's support. But this palliation of his of- fence ceases with his knowledge, acquired, at least unofficially, on March 25th, that the general and commodore had new authority for their measures. Most of Frémont's alleged reasons for disobedience were mere excuses, though he certainly had a plausi- ble ground of complaint against Kearny for not mak- ing known his new instructions, and for disregarding all formalities and courtesies of transferring the com- mand after having in a sense acknowledged the lieuten- ant-colonel as acting governor. Yet the manner and tone of Frémont as well as Kearny were doubtless much more annoying than is shown by the records; and a quarrel once in progress, if the parties keep within the bounds of their legal rights, that is quite as much as can be expected. The path of the adven- turer is not altogether an easy and pleasant one; and in the popular sympathy as for a martyr which his brilliant father-in-law succeeded in working up for him, Frémont got much more than his desert.28

Leaving the military and civil command to Colonel Mason, Kearny left Monterey on May 31st with his escort.29 Frémont and his topographical party started

28 That the instructions of Nov. 5, 1846, were not made known to F. seems, however, to have been the fault of Stockton, who received them in March from Biddle. F. claims that these instructions were 'mandatory to the naval commander 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 was for that commander to inform me of the order he had received, and take from my hands the office and the archives, that he might, as directed, "relinquish" and "turn them over" to Gen. Kearny. For some purpose yet unexplained-unless its object is seen in this prosecution-they were not obeyed.' Court-martial, 421. The S. F. Cal. Star of June 5, 1847, has a good editorial on Fremont and Kearny, with praise and blame for both.

29 May 30th, 31st, K. to Adj .- gen. Jones. In each he announces his in- tention to start 'to-morrow,' but the start was on the 31st. Cal. and N. Mex.,

452

FREMONT'S CONTROVERSY WITH KEARNY.

the same day under orders to accompany the general, the two parties camping each night not far apart. The route was by San Juan and the San Joaquin and Sacramento valleys,30 and they arrived on the 13th in the region of Sutter's Fort, where preparations for the overland trip occupied several days.31 Here Fre- mont asked in writing to be permitted, at his own expense and with a few companions, to proceed in advance to the states; but the permission was re- fused; and similar requests later were denied, in one case the proposition being to take a short route for exploring purposes. It is claimed by Frémont that from the start, though not under arrest or having any intimation that he was to be arrested, he was forced to submit to many indignities at the general's hands. 32 The start from the vicinity of New Helvetia was on June 16th and from Johnson's rancho on the 18th. Kearny's party consisted of himself, Major Swords, captains Cooke and Turner, Dr Sanderson of the Mormon battalion, who had resigned, Lieutenant Rad- ford of the navy, a brother-in-law of Kearny, Willard P. Hall, Edwin Bryant, William Fallon as guide, a Mormon escort of thirteen men, perhaps a few of Emory's engineer assistants who had come to Cali-

Mess. and Doc., 1850, p. 303-6. Maj. Swords started June Ist and overtook the party at S. Juan.

$" Major Swords in his report of Oct. S, 1847, to Quartermaster-general Jesup, U. S. Gov. Doc., 30th cong. 2d sess., H. Ex. Doc., i. p. 229 et seq., gives the most complete account of the uneventful journey. See also Tyler's Hist. Morm. Bat., 299-304.

31 In the N. Helv. Diary, MS., 63 et seq., it is recorded that on the 12th Loker arrived at the fort, reporting that K. had camped at Daylor's and F. at Murphy's. On the 13th, 14th, and 15th Sutter received visits of pleasure and business from the general and his associates; and on the 16th visited K. 's camp to witness the departure.

32 Testimony of Loker and statements of F., in Frémont's Court-martial, 273-86, including F. to K., June 14th, and K. to F. in reply, of same date. One of the chief indignities complained of-besides the refusals to grant his requests, which were in accord with instructions to K. from Washington, and for which refusals no reasons were given-was the being required to camp near and in the rear of the Mormon escort. There was also some diffi- culty about a band of horses which had been left on the Cosumnes since Bear Flag times, and of which Swords by Kearny's orders took the best. It ap- pears by the N. Helv. Diary, MS., that some of the horses were used to pay off the Walla Walla volunteers.

455

STOCKTON'S JOURNEY.

fornia with Kearny, and an unknown number of servants. 83

Frémont's party consisted of William N. Loker and nineteen of the original exploring party, whose names in most cases are not definitely known,34 with an un- known number of servants and other attachés. The journey was a rapid and uneventful one by the usual emigrant route. On the 22d Kearny was at Moun- tain Lake, finding and burying the remains of many who had perished there the preceding winter, mem- bers of the Donner party. He passed Fort Hall in the middle of July, and subsequently met the stream of immigrants bound for California and Oregon. He arrived at Fort Leavenworth the 22d of August; and on the same day ordered Frémont, after having ar- ranged the accounts of his men, to consider himself under arrest and report himself to the adjutant-gen- eral at Washington.

About a month after Kearny's departure Stockton left San Francisco, and proceeded by way of Sonoma to the Sacramento Valley to prepare for the overland jour- ney.35 Lieutenant Gillespie was intrusted with prepa-

33 Kearny's report of May 13th, Cal. and N. Mex., Mess. and Doc., 1850, p. 303; Bryant's What I Saw, 453, the author not giving any diary or narra- tive of the return journey; Cutts' Conq., 213-15; Niles' Reg., Ixxiii. 5, where the total number is given as 50 or 55; Cooke's Conquest, 306. He says there were about 40 men, exclusive of Frémont's party. No names are known except those given in the text, and those of Quigley, John Binley, and N. V. Jones of the Mormons.

31 The number is given as 19 by Loker in his testimony and in a letter from Kearny. It seems as if there should have been more, and Martin-who in his Narrative, MS., 40 et seq., gives a good account of the trip-implies that there were about 40. Martin is the only name positively given; but Breck- enridge, Godey, Moore, Owens, and Wise were at Wash, ready to testify at the court-martial, and were probably of the returning party; aud there may he added the following, who started again with Fremont in 1848: Creutzfeldt, Preuss, Praule, Haler (?), Morin, Hubbard (?), Scott (?), Steppenfeldt, and Duketel (?); also probably some of the Delawares.

King and Kern were not of the party; and it was attempted to show later that they were left behind by Kearny intentionally by his hasty departure, they being at Monterey and Yerba Buena occupied in closing up affairs. But this charge was probably not well founded, since the names of both men ap- pear in the N. Helv. Diary, MS., during the days when both parties were near Sutter's Fort.

35 Departure of Stockton June 28th, with a salute from the guns of the men-of-war. S. F. Cal. Star, July 3, 1847. In N. Helv. Diary, MS., 78 et seq. Stockton's presence is mentioned. He seems to have crossed at Hardy's and gone to Johnson's on the 15th.

454

FRÉMONT'S CONTROVERSY WITH KEARNY.

rations, but was not permitted by Commodore Biddle. at Kearny's suggestion, to visit the northern districts before the general's departure. Thus, as it was claimed, the start was delayed. 38 The party is said to have numbered forty-nine, "a heterogeneous collection of all nations almost, and professions and pursuits," but Stockton, Gillespie, Hensley, and Louis Lafleur are the only members whose names are definitely known. 37

The start from Johnson's rancho was on the 19th or 20th of July, and the arrival at St Joseph, Mis- souri, early in November. Our only narrative of the journey is that given by Stockton's biographer, which is filled almost exclusively with praises of the com- modore's bravery in resisting the attacks of the Ind- ians, who sent an arrow through both his thighs; of his diplomatic skill, shown in avoiding other Indian fights; of his achievements as a hunter among the buffalo; and of his remarkable wisdom in conducting the whole enterprise. There was nothing, if we may credit this eulogist, which the 'conqueror of Califor- nia' could not do more brilliantly than other men. 38

It was the general understanding that Major Rus- sell, leaving California in March, had carried to Wash- ington a petition signed by many southern Califor- nians for the appointment of Fremont as governor. In May another similar petition was signed by many

36 It was charged that K. delayed G. intentionally so as to deprive Fre- mont of his testimony. K. admitted that he had favored Mason's idea that G.'s presence on the Sacramento might make trouble, and had suggested Biddle's order; hut denied that he knew of G.'s plan to go east at this time. Frémont's Court-martial, 308.

37 J. B. Chiles was probably one of the number; and of the other witnesses at Washington in Nov., Wm Findlay, J. Ferguson, Wm and James Brown, R. Jacob, and L. C. Vincenthaler may have come with Stockton or with Fre- mont a little earlier. Three Rocky Mountain trappers were engaged as guides and interpreters. One of them, described as having a Crow wife, was per- haps Greenwood. Kern and King of Fremont's party started with Stockton, but after four days were left sick in the mountains. See testimony of Gilles- pie and Hensley in Fremont's Court-martial, 218-28, 233-4.

38 Stockton's Life, 139-66. 'Tears coursed dowu the weather-worn cheeks of the bold and hardy mountaineers when they took the last friendly grip of the commodore's hand. They implored him if he ever made another overland journey to send for them. Lawless, reckless, desperate, wicked, and callous, as many of them were, Stockton had found the tender spot in each man's heart.' He reached Washington about Dec. Ist.

453

THE GOVERNORSHIP.

in the south, and received some signatures in the north, where, when the affair became known, a strong opposition was excited. This was based on three leading motives, all more or less analogous and inter- twined. First was Fremont's unpopularity among the natives and others, fomented by the ex-members of the battalion clamorous for their pay, and by other holders of unpaid claims; second, the influence of Gov- ernor Mason and his friends, naturally opposing a change of rulers; and third, a sectional spirit against the natural theory that Fremont would unduly favor the south, where his friends for the most part resided, or where his past irregularities had least affected the property of the people. Possibly the real merits of the case had also an influence; for it would certainly have been the worst of policy to reopen old contro- versies by a return of the ex-governor, whatever may have been the merits of his cause. His friends in the north tried to create an impression that his return would promote the payment of the claims, the non- payment of which was due to his foes; but without success. A public meeting was held at San Fran- cisco to remonstrate against him, a committee being appointed to seek evidence against his fitness, and a counter-petition being circulated. Larkin also wrote to the secretary of state in opposition to Frémont. But the administration probably never thought of making the appointment.30

It was on September 17th that Fremont reported at Washington, calling for the charges against him,

39 Record of the S. F. meeting of June 14th in S. F. Cal. Star, June 19th; S. F. Californian, June 19th. The prominent men named were Nathan Spear, R. M. Sherman, H. Petitt, Frank Ward, T. J. Farnham, Jasper O'Farrell, Robt Semple, Dr Wiersbicki, Thompson, Leese, Leidesdorff, Mur- phy, and Guerrero. An editorial in the Star also opposes Fremont in a mod- erate spirit. In Taylor's Spec. Press, 630, is a blank form of the petition against F. for signatures. His Bear Flag exploits, partiality for the south, and unpaid accounts are the points urged against him. June 30th, Larkin to sec. state. Larkin's Off. Corresp., MS., ii. 117-18. He says Abrego, after signing the petition for F., gave a courier $20 to overtake the memorial and erase his name. Alvarado also regretted having signed the paper. See also mention of the matter in Tuthill's Hist. Cal., 222-3; Soule's Annals of S. F., 195.

456

FRÉMONT'S CONTROVERSY WITH KEARNY.

and demanding an carly trial. 40 The order convening a court-martial bore date of September 27th, the court assembled at Washington the 2d of November, and the trial lasted till January 11, 1848. Captain John F. Lee was judge-advocate of the court, and Frémont was defended by Senator Benton and William Carey Jones. Respecting the court, the charges, and the published record of proceedings, I append some par- ticulars in a note.41 The testimony, oral and docu- mentary, has already been presented in spirit, and largely in literal quotations as a record of the con- troversy in California; and it is not my purpose

" Sept. 17th, F. to adj .- general, in Bigelow's Mem., 217-20. This work also contains Frémont's final defence, and the most complete account of all connected with the trial extant, except the original record.

41 Message of the President of the U. S. communicating the Proceedings of the Court-martial in the trial of Lieut-colonel Fremont, April 7, 1848 (cited by ine as Fremont's Court-martial), in U. S. Govt Doc., 30th cong. Ist sess., Sen. Ex. Doc., 33. (Wash. 1848.) Svo, 447 p. The court was composed of the following officers: Brev. Brig. gen. G. M. Brooke, Col S. Churchill, Col J. B. Crane, Brev. Col M. M. Payne, Brev. Lieut-col S. H. Long, Licut-col R. E. Derussey, Lieut-col J. P. Taylor, Brev. Lieut-col H. K. Craig, Maj. R. L. Baker, Maj. J. D. Graham, Maj. R. Delafield, Brev. Maj. G. A. McCall (re- placed by Col T. F. Hunt), and Maj. E. W. Morgan. The witnesses exam- ined were, for the prosecution, Kearny, Cooke, Turner, Bryant, and Emory; for the defence, Stockton, Gillespie, Hall, Gray, Talbot, Hensley, Minor, Russell, Beale, Loker, and Swords.

The charges were as follows: i. Mutiny. Ist specification, that Fremont, having reported to Kcarny, his superior officer, on Jan. 13, 1847, and having received K.'s order of the 16th to make no changes in the battalion, with a copy of K.'s instructions from Washington, did by his letter of the 17th re- fuse to obey; 2d spec., that he disobeyed the same order further and assumed to act as commander, by directing Capt. Wilson on the 25th to raise a co. of artillery; 3d spec., same, by authorizing McLane on Feb. 5th to recruit men; 4th spec., that he reasserted his resistance, etc., by his letter of Feb. 7th to Shubrick; 5th spec., that he avowed and justified his mutiny, etc., by his let- ter of Feb. 11th to Hall: 6th spec., that he assumed to act as gov., in contempt of lawful authority, by his deed of an island to Temple on March 2d; 7th spec., that on March 15th, having received the joint circular of K. and Shubrick and general orders no. 2 of March Ist, and having promised obedience, he further disobeyed by his orders to Capt. Owens not to give up arms, etc., causing O. to disobey Cooke; 8th spec., that on March 16th he made known to Cooke in writing his refusal to obey orders aud discharge the volunteers, still assuming to act as gov .; 9th spec., that on March 21st he continued his assumption, disobedience, contempt, etc., by his order to Alexander to accept govt pay- ment for duties; 10th spec., same, by divers orders from Jan. 24th to Feb. 13th on court-martial and resignation of officers; 11th spec., that F., after re- ceiving K.'s verbal orders of March 26th, and written orders of the 28th, dis- obeyed those orders by remaining at Los Angeles until after May 9th. ii. Disobedience of the lawful command of his superior officer; spec. 1-7 corre- sponding to spec. 1, 2, 3, 7, 8, 10, 11, of the first Ist charge. iii. Conduct to the prejudice of good order and military discipline; spec. 1-5 corresponding nearly to spec. 4, 5, 6, 7, 10, of the 1st charge.

457

FRÉMONT'S COURT-MARTIAL.

to attempt any minute analysis here. The matter filling the bulky record of over four hundred pages may for convenience of comprehension be divided into four parts, of which the first, consisting of the routine verbiage and repetitions deemed essential in such documents, needs no further notice.

The second portion is composed of matter intended mainly for the people of the United States rather than the military court. It was the evident, and indeed avowed, aim of Frémont and his friends to make the trial cover the entire field of Californian annals in 1846-7, so far as those annals were favorable to them- selves. They wished to magnify the opposition of the natives and other obstacles to success in order to ex- hibit Stockton and Frémont as conquerors and heroes. They were disposed to make much of the errors and belittle the efforts of other officers. They would dwell on San Pascual, and say little of Chino, Gilles- pie at Los Angeles, Mervine at San Pedro, Burroughs at Natividad. In all this they had a decided advan- tage. They were permitted to go in this direction far beyond the real questions at issue, though not so far as they wished, or as the historian might desire. Moreover, for the jury they had in view, their ques- tions not permitted to be answered, unsupported im- plications, and arguments on what was to be proved by testimony not admitted, were quite as effective as the legitimate evidence introduced. And it cannot be denied that they won a victory; that the verdict of popular sympathy was in Fremont's favor. In this phase of the trial the prosecution could do nothing but limit the extent of irrelevant testimony. Could they have known, however, and proved the facts revealed in this volume respecting the true character of Fre- mont's and Stockton's part in the conquest from the beginning, they would have had an easy road to victory over the pretending conquerors.

The third class of material consisted of a long series of counter-charges, expressed or implied, against

458

FREMONT'S CONTROVERSY WITH KEARNY.

Kearny, including also attempts to refute certain similar accusations against Frémont introduced by Kearny and his friends in their testimony, but not included in the formal charges. These petty com- plaints on the part of the defence were intended main- ly for the public, though some of them properly sup- ported, as they were not in most instances, might have had an influence on the court. 42 Many of these matters have been noticed in the preceding pages. In the aggregate they seem to show on the part of General Kearny an animus against his opponents prompting him to conduct in certain minor transac- tions not creditable to his high position; yet not too much importance should be attached to this phase of the affair, since only one side of the case was presented. A wide latitude was given to Frémont's brilliant de- fenders, while Kearny, not being on trial, was deemed to require no defence and no counter-attack on his foe. The popular verdict in this as in the former branch of the case was in Fremont's favor; for resulting ad- miration of the path-finder and conqueror was hardly

42 Kearny's statement that F. tried to 'bargain' with him for the governor- ship is the one against which, as most affecting his honor, F. protested most earnestly. During the trial K. is accused of remembering only what was favorable to himself until hard pressed in cross-examination or confronted with written proofs of the things he had forgotten; also of false or contradic- tory testimony on a few details; and of unduly multiplying, complicating, and exaggerating his charges. The attempt was made to show that he tried to keep away important witnesses for the accused; and had not only sent secret accusations to the government, but had indirectly worked up public sentiment against his foe through the newspapers. Besides various indigni- ties on the march east and in the manner of the arrest, his keeping his con- templated charges a secret from Frémont was regarded as irregular, as was his refusal to permit F.'s departure for Mex. or the U. S. without giving any reasons. Various insults were mentioned or hinted at, as the insisting on Mason's or Cooke's presence at interviews, sending Mason south with au- thority, parading thic explorers offensively at Monterey, forcing F. to sleep in town, sending the Mormons to 'crush' him, etc. And, of earlier date, at- tention was called to his denial of Stockton's position as commander on the march to Los Angeles; his claim that the expedition was undertaken at his own urging; his crafty efforts to draw out from F. at San Fernando a 'report;' and his failure to mention this pretended report during the first controversy, or to attempt any suppression of F. 's mutiny-even encouraging his hope for the governorship after the mutiny was committed. Much stress was also put upon his neglect to make known his instructions of Nov. 5th, or to call for a formal trausfer of the command.

459

FREMONT DISMISSED FROM THE ARMY.

less marked than disapproval of a general who had unworthily persecuted an officer of lower rank.

Fourth and last, we find matter pertaining legiti- inately to the charges of mutiny, disobedience, and conduct to the prejudice of good order and military discipline. The evidence was clear and conclusive. Whatever name might be given to the offence, Fré- mont had disobeyed in January and March three dis- tinct orders, or sets of orders, given by his superior officer. His defence from a strictly legal point of view had no force whatever. The prosecution might have rested their case on the documentary evidence alone; they made no argument, while permitting Benton almost without limit to manufacture public opinion in behalf of his protégé. The reading of the argument for defence occupied three sessions of the court; and after three days of deliberation a verdict of guilty on all the twenty-three specifications of the three charges was brought in on January 31st, the sentence being dismissal from the service.43 Seven members of the court signed a recommendation of clemency, on account of previous professional services and of the peculiar circumstances in which the ac- cused was placed between two officers of superior rank each claiming the command. President Polk on February 16th accepted the verdict, except on the charge of mutiny, and approved the sentence, but re- mitted the penalty, ordering Fremont to resume his sword and report for duty. But the lieutenant-colo- nel declined to accept the president's clemency, and sent in his resignation, which was accepted on March 14th.44 The court-martial had been an excellent ad-

43 Remarks by the court: 'With all the latitude of evidence and the broader latitude of defence, the court has found nothing conflicting in the orders and instructions of the govt; nothing impeaching the testimony on the part of the prosecution; nothing in fine to qualify, in a legal sense, the resistance to authority of which the accused is convicted. The attempt to assail the leading witness for the prosecution (Kearny) has involved points not in issue, and to which the prosecution has brought no evidence. In the judgment of the court his honor and character are unimpeached.'

# Bigelow's Mem., 317-18.

460

FREMONT'S CONTROVERSY WITH KEARNY.

vertisement for the young adventurer, and he had no further use for his commission. He would return to California to seek political honors and wealth from his Mariposas estates. He started before the end of the year with a private exploring party, which was broken up with a loss of ten men frozen to death be- fore reaching New Mexico. But in 1849 Frémont arrived in California, where we shall hear of him again.

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History of California, Volume XXII, Part 48

Author: Bancroft, Hubert Howe Publication date: 1885-1890 Publisher: San Francisco, Calif. : The History Company, publishers Number of Pages: 816

Author: Bancroft, Hubert Howe
Publication date: 1885-1890
Publisher: San Francisco, Calif. : The History Company, publishers
Number of Pages: 816