Jesse D. (Jesse Duncan) Elliott.

Defence of Commodore Jesse Duncan Elliot, of the United States navy (Volume 1) online

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DEFENCE

OF

/

COMMODORE JESSE DINCAN ELLIOTT,

OF THE UNITED STATES NAJPfJ
READ BY THE

L©KTo ©E©o MEPMLIM ID) AILJL. AS,

BEFORE THE NAVAL COURT MARTIAL AT PHILADELPHIA,

JUNE 20, 18-40.
WITH LETTERS AND DOCUMENTS EXPLANATORY OF PORTION d OF THE DEFENCE






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DKFENCK



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COMM I) 11 E E L L I O T T .



The trial of this officer on numerous charges and specifications, commenced
before the Naval Court Martial, at the Navy \ an!, in the County of Philail 1-
phia, on the 1 Ith of May, IS 10, and continued from day to day until the 20th
of June following. The Court was composed of nine naval Captains: — Captain
.1 \i OB JONES, President, Captain Lewis Warrington, Captain John
Downs, Captain Edmund P. Kennedy, Captain Chables W. Morgan,
Captain F. C. Parker, Captain David Conner, Captain John D. Sloat, and
Captain George W. Storeb — John M. Read, Esq. acted as Judge Advo-
cate.

The evidence having closed on the 15th instant, lour days were allowed for
the preparation of the defence, which was handed in on the 20th inst. , al 11
o'clock in the morning, by Commodore Elliott, and read by the Hon. Geoj
Mifflin Dallas, Ins Counsel, as follows: —



Mi:. Prcsid nt,

AND G THE < JOURT,

After an arduous career of six and thirty
years in the Navy of the United States, my only
desire, under thei ircumst inces which now
round me, is i i avoid saying a single word, or
doing the slightest act, that might lie injurious
i i any branch of that Bervice, or derogat try to
the rank I hold in it. The few plausible impu-
tations before 3 1 , which have been can fully
distilled from th porum ind,

and whi ;h ii is thought may derive from c im-
binatioa an imp >i uice they
separately, are aoi of a nature to ala m my
of honor, or 10 awaken any fear that my
whole life lias been Bpent in vain. ( Jome what
may on the presi ntoci ision, the distinguished
fellow offi impose this < Sourt, shall

find me acquiescing, with entire candor and
confidence, in the conclusions of thoir di
sionate judgments. 1 have yet strength and
seal to devote to oar cherished country, but I
am also old enough to be quite sure, that the
i' i-i, with whatever of usefulness ami reputa-
tion may have attached i i it, is hoarded
beyond the reach of calumny or cavil, while it"
I



future, be its pains and solicitudes what they
may, must be brief.

In Bober truth, gentlemen, the pursuit to
which I have been su I, 1-, in its origin

and character, and as a pTeci dent, far more dan-
1 1 the noble arm of national di fence and
glory to which •■ • than it can bo

hurtful t 1 myself individually. Permit me,
with unfeigned deference, to explain my mean-
ing. 1 n ive no desire to complain of persecu-
tion, to v. 10 your sympalfa . tinting out
the peculiar difficulties of my position, nor to
inveigh against the pr iscriptions of political
party orth issaults of the press; these
pics which might misleed or be miscon-
i: — bul I > ! upon your at-
tention certain genera] and glaring featur
this prosecution; — to awaken you, as legitimate
liana of the highest in' ^.rai t-
Navy to their inevitafa . ind to in-
voke your most strenuous and unwaverin |
forts 10 defeat them. Were it the last act of my
life, I should, dying, rejoice in having been in-
strumental, through the finding of this tribunal
icuing our gallant corps from the perilous
mischiefs to which 1 advert.



The experience of those who hear me must
have satisfied them that nothing is practically
more difficult than to reconcile the incontesti-
ble rights of free citizens, and the courtesies of
polished deportment, with the hourly exigen-
cies of military discipline and subordination. —
They whose duty it is to order, cannot always
pause to measure their words, and adapt them
to the precise privileges or pretensions of those
whose duty it is to obey. A thousand uncon-
trollable causes intervene to prevent them. —
This may be regretted, but cannot be remedied.
Nevertheless discipline and subordination must
be maintained: their purposes are too vital and
paramount to be abandoned; their operations
cannot, without the most pernicious consequen-
ces, be arrested by frivolity, or relaxed by fa-
voritism. Once waive their necessity; — sanc-
tion the idea that regulations are cobwebs to be
broken through at pleasure, that rank is enti-
tled to no deference, that commands may be
disputed or denied, that the superior officer
should silently submit to having his admoni-
tions "repelled'' by flat contradiction, and be
content with the ''forbearance*'' that leaves him
personally unassailed; — that the settled grada
tions of authority, with their designated chan-
nels of communication are idle formalities; and
what will become of the naval system, of whose
fruits the American people have heretofore been
sojustly proud] — what will become of the best
bulwark which free institutions can organize
against foreign aggression.

I do not at this moment, propose an elaborate
application of these principles tothe cases before
you; — a fitter occasion as to each will present
itself hereafter: — but I venture to assert that no
reflecting man can have followed the develop-
ments of this trial, and have marked with dis-
crimination its sources, without a deep convic-
tion that almost every one of the various char-
ges and specifications, find their real roots in a
restless intolerance of discipline — in that pru-
rient and preverse spirit which seeks distinc-
tion by defying subordination — in that false am-
bition which hopes to attain eminence by resis-
ting and humbling established authority. Else
wherefore is it that I am here for having repres-
sed a personal altercation between two of the
officers under my command on the arena of a
thronged^race-course"? Else, wherefore is it that
I am here for having inflexibly refused to con-
sider the result of a flagrant violation of law,
civil, military, and divine, as entitled to official
indulgence and indirect sanction"? Else where-
fore am I here, for having transferred a chap-
lain trom a frigate to a schooner, confiding his
safety to the same winds, waves, and boat, to



which I entrusted distinguished officers and
excellent seamen? Else, wherefore am I here-
for having, unalarmed, forborne to shoot down
as mutineers, scores of as brave and faithful
tars as ever carried their country's flag unsul-
lied to the close of a protracted cruize, but
whom the culpable negligence of inferior offi-
cers had betrayed into the temporary disorders-
of intoxication"? I am here, gentlemen, yes, I
am here, solely because my sense of duty and
my experience have had to deal with some who-
can brook no government, suffer no control, ex-
cept that_which they themselves exercise"?

Nor is the alarming tendency of this prose-
cution less obvious in the novelty and incon-
gruity of its pretended legal foundations. If
what I may be permitted to characterize as the
laic of several of the charges obtain recognition,
the officers of the American Navy have uncon-
sciously become the slaves of a secret, unset-
tled, and capricious domination. It is in vairi
that the Constitution of the United States has
expressly forbidden the malting of ex punt facto
laws: — it is in vain (in the language of one of
the best and wisest of our Judges) "the genius,
the nature, the spirit of our governments,
amount to a prohibition of such acts of legisla-
tion;" — it is in vain that the great first princi-
ples of reason and of the social compact repel
them, if, at the mere discretion of power, and in
order to suit the exigencies of private malice,
actions long deemed innocent are suddenly de-
nounced as crimes, and penal enactments, made
elastic for oppression, are stretched and tortur-
ed beyond their just and natural application. I
am willing to obey — it is the fundamental les-
son of military life — but let me know for whom
and for what my obedience is claimed. I am
old in submission to the laws, usages, and prin-
ciples of my country: I am yet unborn to the
vassalage of hidden and entrapping rescripts.
When I tell the Court, as their careful consid-
eration of the proofs will verify, that of the
twenty-two specifications, ranged under the
third and eighth charges, every one of them de-
lineates as criminal, that which had before, and
in countless distinguished instances, been re-
garded as strictly right or harmless, and what
no legislative provision, no executive injunc-
tion, no judicial sentiment or decree had ever
intervened to proscribe or discourage, may I
not say that here is a large and fearful stride
towards an arbitrary and destructive system"?

Nor is this the, worst. It would seem as if,
to attain the ends of this unprecedented proceed-
ing, certain preconceived and universal rules of
honor were to be reversed, and that hencefor-
ward the affection and respect of our fellow-



men were to be repudiated as badges of shamo.
Do American officers and American seamen
cease to be tmnrican eitizensl In assuming
fossi ;i >>t' ;i r: 11 -i, and devoting their lives,
to the national defence and glory, hare they
loot ili" humble right "'.' being I><-1 rved, or the
ioveluable privile re of manifesting tb
in. -Hi' Why is it that raj merely receivings!
testimonial ofe ratitude from a nu-

merous body of men -is free and fearless as my- 1

.
or. unbecoming and nnofficerlikel 77/'// and
ill v . witnout :; • ■ of the innumer-

qu i!il'', ing I If is the

li.il.l imputation of the first speci i tation, of the
third charge and >n of]

jhth. What does it mean] Is it design-
•■
navigate our ships and fight our

• d hy virtuous anl inde-
pendent motive . tr to appr i tch
with mi polluting their professional chief! I
in proti Bt ag iinsi jerved
and sweeping a denunciation, [demand for the
free spirit, the pe "s mal o -n r.i^-', the manly in-
telligence of the crew of the ( lonstitution — nay,
1 el, uji for the greal class of mariners in the
n iv. ii service of our country, an exemption
from this lordly and contemptuous ban. They
are a hardy, adventurous, and disinten
race, early trained to a knowledge of their
rights, but submissive t i the law — quick to
resent petty tyranny, but kind and confiding to
tlndr friends; easily moved I i avenge a wrong,
butgenerous as bold, and always patriotic.
Surely the warm-hearted, tribute of Buch men
cannot disgrace the loftiest in pretension. .Sure-
ly he whose stern duty ii is to exact from them
constant privation, and unlimited ob
may innocently delight in a gifl which ai
Ins having, in Bome me it I the
oharacter of their commander, with il i
guardian of their happiness and interests. Is
it not strange, gentlemen, thai I i the
moral alembic of this prosecuti . w< mould
be tauntingly reproached with whatconstii
our pride!

It is essential to the purpose of these re-
marks, th.it their true bearing should not he
mistaken. 1 have no desire to review with
unnecessary sevi rily the errors of intemperate
passion, which have from the first and p
veringly marked the conduct of my accusers,
nor the cool or careless, the designing or delu-
ded, misjudgmenta of those by whom these
accusations have been encouraged and adopted;
much less do 1 impute to the organ of govern-
ment before this Court, who has moulded the



materials famished him into the only structure
of which they were susceptible, their vague
and discordant character. But I insist upon
the broad and conservative principles, that
crimes are not to be fabricated on the spur of
every .!,out of acts in themselves un-

importamVand indifferent — that what theemi-
il me have repeated-
ly dono uncessured and unassailed, shall not
abruptly be proclaimed as tru il t in me, and that
that only shall b -rime, subject to

the jurisdiction of a Court Martial, which is
clearly cognisable by some one or other of the
articles, rules, and regulations of the Navy.
Let i ointedly illustrate the ground

thus : jreeebly to the ?d article of the

first section of the Act of Congress of the 23d
of April, 1800, entitled, "An Act lor the better

t I mi i.t of the Navy of the I ui ted St. ; -
1 admit that :m officer may be tried, convicted,
cashiered, or punished at discretion, upon the
third charge exhibited here, of "Scandalous

icl tending to the destruction of good mor-
als" — but 1 wholly deny the competency of
any accuser, private or public, subordinate or
in authority, to range in maintenance of this
charge, a nduct or conversation, ha-

ving not the remoti st imaginable connection
with '•"! /■-' '-," and to ask, first, that the charge
shall be i be sustained by the spe-

cification, and second, that the speoificstioBj
shall take its character from the charge. Were
such a course permitted, the ordinary inter-
course of social life, the casual incidents of
convivial enjoyment, the consul) ttiona of con-
fidential friendship, and every proceeding not
at once appreciated in (very respect by every
body, would become the basis of trial and con-
dem nation . The law would dilate or contract
to covi r presented, and instead of

d, limited, and precise rule, would
vary to accommodate the prejudices, thecapri-

orthe tastes of its expounders. What,

"scandal and tendency to the destruction of

predicated of my publicly

pting a present from my crew? What,

.(/ tendency to the destruction of good

morale" can be attributed to my embarking

useful animals on hoard the ( lonStitutionlWhsAj

idol and tend ncy to the destruction of good

morals," can bo 'my openly employ-

ing men in feeding and otherwise protecting
And what, "scandal and ten-
ilinci/to the destruction of good morals,, can
be inferred from my having notoriously, and
by regular requisitions, consumed in the erec-
tion of stalls for their comfort and safety, cer-
tain boards, plank, nails, canvass, and junk?



If these specifications describe matters that are
really offences, cognizable under some other
comprehensive provision of law, let them not
be set forth under this, to which no ingenuiy
can possibly apply them. If there be no arti-
cle or regulation to the standard of which they
can be rallied, would it not be wiser, juster,
safer, and better, to recognize the truth, and to
own that they are not offences at all? Let me
add, without wishing in the slightest degree, to
restrict the import of the legal phraseology, that
it is difficult to avoid perceiving, on reading the
Act of Congress, the exact nature of the irregu-
larities or indecencies against which its modest
generality is directed: — "any officer or other
person in the Navy, who shall be guilty
of oppression, cruelty, fraud, profane swear-
ing, drunkenness, or any other scandalous con-
duct tending to the destruction of good morals'"
a momentary glance at the statute of the Bri-
tish parliament from which this provision was
drawn, and which is less delicate in itu terms,
perfectly explains the allusion.

1 cannot gentlemen, omit to remark upon
another peculiarity of the investigation through
which you have passed, whose inconvenient
and dangerous consequences I have painfully
witnessed. It will be recollected that the pre-
cept issued by the Honorable the Secretary of
the Navy for the organization of a Court of In-
quiry, instead of being restricted to the only
charges which engaged the least attention, and
as to which it was cheerfully sought, author-
ized an examination into every incident of my
life, important or unimportant, during the four
years of active, anxious, and laborious public
service, connected with my command in the
Mediterranean. If there be in the annals of
naval government, a paralel inquisition re-
corded, it has escaped my research. Though
not so designed, it operated instantly as an in-
vitation to everyone on whom the discharge of
my military duties had borne with any severity
to come forward and seek his revenge; to find
in the lapse of time, in s the confusedly remem-
bered incidents of distant days, and in the per-
verted reasoning of moody and long indulged
mortification or enmity, ample means of assail-
ing me at unguarded points, and of giving
plausibility to stories and insinuations which
no memory, however tenacious, could pretend
to retain with the fullness and accuracy necess-
ary to perfect explanation. It placed me at
once as a target for all the discontented, for all
who hated bitterly or felt spitefully, for all
who thought themselves aggrieved, or were
ready to believe that others had been so. If
this be esteemed a just ordeal, the precedent,



first set in my case, may be useful to the Ameri-
can Navy: — if it be esteemed otherwise, as on
my soul I believe it to be as unjust as it was
new, long may it remain without imitation —
long, very long may it be before a brother offi-
cer, however honorable and innocent, shall be
forced to undergo it ! What have been its ob-
vious results 1 Looks, words, gestures — nay,
even tones of voice — things which can scarce-
ly be remembered from day to day, have mir-
aculously outlived years, and are reported as
positively as if of last hour's growth : — the
setting sun, the rising wind, the rate of sailing,
ihe time of tide, the transfer of provisions at
any given hour four years ago, have been
narrated with a hardy confidence than throws
into shade almanacs and log books: while
blindness itself could scarcely fail to see the
dove-tailing, corroborating, mutually counte-
nancing and encouraging indications of a grad-
ually formed, extensive, and if you please, un-
conscious combination to destroy.

It may not be amiss to show briefly a few of
the singular contradictions and inconsistencies
into which the prosecuting witnesses were
thrown by the test of cross-examination — rend-
ering it manifest how little reliance could be
placed upon their real recollections. I am not
anxious to inculcate a harsher conclusion. —
When, however, it is considered that a correct
appreciation of the truth or falsehood of many
of the specifications might, (such is their na-
ture!) depend upon the insertion or omission,
at particular emergencies, of a single word or
qualifying phrase — when a slight circumstance
remembered, or forgotten, or evaded, might be
the illuminating index of motive or feeling, it
cannot fail to inspire great caution and doubt,
if we detect irreconcileable discrepancies in
the sources of testimony. Opposite assertions
cannot both be true, and the witnesses who
make them, unintentionally but fatally disprove
and impeach each other.

Is it not something to shake your confidence
in the statement of Lieut. Charles G. Hunter,
that he should at one time vehemently assert
that I shook the cane over his head — but, at
another time when the impossibility of my
having done so by my distance from him is
overwhelmingly proved, that he should vary
the phraseology to shaking the cane at him 1

Is it not something to awaken an apprehen-'
sion lest the solemnity of the occasion may not
be adequately felt or the memory be very fee-
ble, when the same gentleman on Monday
morning positively avers that he saw Chaplain
Lambert on the immediately preceding Sun-
day evening at the office of the Judge Advo-



rate, but on Tuesday morninrr recalls his aver- 1 crow on the berth dock, while Mr. Hutchinson
rnent, sndhas reason to believe that he mista- 1 who sent them from his house, and Captain



tod the factl

Is it not something to bewilder the besl ex-
poonders of evidence, when Lieut. McBIair
represents the Constitution as going Into
Hampton Roads on the first <f the flood —
Lieut. Bntlus, at half flood — and Sailing-mas-
ter Muse tit high

[s it not something to embarrass your choice
and beep yon suspended between the greater
knowledge of the officer and the BuperioT
tity of ili'- clergyman, when Lieut. Watson
tells yon unhesitatingly that the ship in the
harbor of Suda was hove to, while Chaplain
Lambert as p isitively tells you she was notl

Is it not Bomeihinj 1 1 inspire misgiving, that
id Midshipman Barton should ui
i at he had received no orders not to go on
from ili" Shark, while Lieut. Totti n as-
serts that he in person <■ mrounic vi ry
orders to him? — th d the a ime passed Midship-
man I! irton denied that he was left at Smyrna
at liis own request, when the letter of Dr.
1 1 yd to his father Dr. Wm. i'. I '. Barton, un-
equivocally states that he was 1— and that the
seme passed Midshipman Barton shi old depict
'•///<• Hondas madly gushing through the hi

of Ins wounded limb, when Dr. Wood-
worth s iv ■; that si! -li a phras • is .i u flg uralive
expression" which he does not understand, and
that the haemorrhage wasslightl -

Is it ling inexplicable, as fin oper-

ation of mere memory, that Purser Hamb
should inform yon th i I i Borai m, in re-

porting to some of the crew after dinner on the
day of anchoring .it Hampton Roads the reply
of the Commodore to their inquiry when the
ship wonld proceed to Norfolk, said "at
aa the pilot would carry her" while Lieut. i>n!!-
as pronounces it i i have b< i •■ ion as the
anim at «fthe ship" and while ' 'apt.

Boraem himself admits neither statement to be
correct, but alleges his reply to have I
"thai oftern morning !

Is ii i de that I'.iss-

e<l Midshipman Anderson's r col lee ti m should
warrant his declaring that someofthe stalls of
the animals wi I or nailed to some of

the trucks of the guns, while ( Jarpenter Sagee
who constructed them all, peremptorily af-
firms that nothing of the sort was dune in any
one instance ?

And is it not something, a little more than
singular, that Lieut. Bellas Bhould declare that | animah
two of the pieces of plate, the pitcher and wai-
ter, had not the inscription engraved on them
at the time when they were exhibited to tho



Boraem who received them on board, just pri-
or to thai exhibition, aver that they /nut!

God grant, gentlemen, that tbi se direct and
almost extravagant contradictions and discrep-
ancies on points bearing upon the merits of
the specifications, be accidental !

I have endeavored to analyze the « - i if 1 1 1
charges, with their thirty four specificati
to divest them of their mere descriptive or ex-
aggerating epithets and to sv-ii matize their
substance bo as to presi nt distinct and com.
prehensive an were lo all and each of them.
It is obviously nnn< c low

them • ively and according

arrai geraent, as b< me of them
are mere ri petitions under different heads, and
others only varied by slight additions or orais-
. more forma] than mati rial. \

intention, so I hope this Court will find on can-
didly and carefully considering what I shall
■ gation made in any shape, to
which the evid the least application,

has been Buffered to pass without its jnst and
ample
Of the thirty-four specifications seven of
be characterized as purely personal,
ndividual complainanls,nami \] ,
Lient. Charles (■'. I lunti r, < lhaplain I
R. Lambert, and Passed midshipman Charles
irton. The replies to these Bp< cificatiohs
will therefore be I marshal themselves undet
the names of tin ir reepi ctive original
Of the remaining twenty-seven

1 from wh ! :
rmit! d I lish as the Crew's

pres 'nt of silver Plate; - rj are d< -

duced from the fact, with its i inci-

dents, of my having brought to the United
3 on board the John Adams and the Con-
ition, the animals enumerated; floe other*

nnded out of th e I f

id mutiny at Hampton Itoads; and tho
three last apply to the infliction, on twt

■e servants and a seaman, of u tra pun
nun/.

I propose, therefore to answer all the thirty-
four specifications, and ot course the i
charges, for lions once removed,

char sarily fall to the ground, nndei

the foil iwing distinctive heads, pursuing an
order conformable to what may he esteemed


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