Pacific Destiny and Bear Flag Rising

by Dale L. Walker

In the course of the trial, Frémont characterized the charges as a “comedy of three errors,” the first being “the faulty order sent out from this place [Washington]; next, in the unjustifiable pretensions of General Kearny; thirdly, in the conduct of the government in sustaining these pretensions.” The last of these, he said, was the greatest of the three.

  He pleaded not guilty to each of the twenty-three specifications.

  His defense strategy centered on the struggle for command between Kearny and Stockton, this having at its source the circumstances he had explained in his February 7, 1847, letter to Commodore Branford Shubrick, who had been sent out to Monterey to relieve Stockton of command of the Pacific Squadron. Frémont had written Shubrick that “The conquest of California was undertaken and completed by the joint effort of Commodore Stockton and myself in obedience to what we regarded paramount duties from us to our government” and that this conquest was complete and a civil government had been established before Kearny’s arrival in California.

  The explorer was also able to demonstrate that the charges against him derived from this rivalry and from Kearny’s vindictiveness and temper, attributes shared by a circle of sycophants such as Commodore Shubrick, colonels Richard Mason and Henry Turner, Lieutenant Colonel Philip St. George Cooke, and Lieutenant William H. Emory. And he was permitted to place into the record all the affronts he had suffered during the contretemps between his superior officers, especially those inflicted by Kearny during the march home, the keeping of the charges against him secret for six months, the outrageous manner of his arrest, and the subsequent demeaning treatment at Leavenworth.

  Of the great latitude the court extended the defense, Bernard DeVoto said that the court, in permitting extraneous testimony and records, allowed the explorer and his counsel “to turn a military trial into a political circus,” and characterized it as a “creature of oratory and newsprint.”

  But Frémont proved to be a formidable advocate, especially relentless when, referring to himself in third person, he questioned his accuser. Their first exchange did not reflect well on the general.

  “At what time did you form the design to arrest Lieutenant Colonel Frémont?” Frémont asked.

  “I formed the design shortly after receiving his letter of January 17. That word ‘shortly’ would not imply immediately. It may have been a week.”

  The explorer then bored in on another critical matter. Kearny, in mid-February, 1847, had received orders from General Winfield Scott, carried to California by Colonel Richard Mason. These orders gave Kearny command of all land operations in the province and the office of military governor and authorized him to muster the California Battalion into the army.

  Why, Frémont asked, had Kearny not informed Lieutenant Colonel Frémont of these orders—which would have ended all debate on the command issue?

  Kearny answered haughtily, “I am not in the habit of communicating to my juniors the instructions I receive from my seniors, unless required to do so in those instructions.”

  (Frémont biographer Allan Nevins calls this response “a very lame excuse for a base act.”)

  Kearny made a poor start and was a poor witness overall. His chief weakness lay in his inexplicable memory lapses—or, as the defense had it, his highly “selective” memory. He claimed he could not remember that Frémont had made his ride from Los Angeles to Monterey for the purpose of warning about the rumors of an armed Californian force planning to recapture the southern province; he could not remember that it was Kit Carson who had delivered Frémont’s letter to his office on January 17; he claimed never to have heard of the conquest debts Frémont had begged his assistance in paying; nor did he remember Frémont’s attempt to resign from the army. He could not remember who had recovered the cannon he had lost in the San Pascual battle, could not remember Lieutenant Archibald Gillespie or Lieutenant Edward Beale, two of the officers who had led the Stockton relief force of sailors, marines, and California Battalion volunteers who had joined him on the eve of the battle.

  One thing the general did remember clearly was that Lieutenant Colonel Frémont had attempted “bargaining” for the governorship of California.

  “He asked me if I would appoint him governor,” Kearny said from the witness stand. “I told him I expected shortly to leave California for Missouri … that as soon as the country was quieted I should, most probably, organize a civil government in California; and that I, at that time, knew of no objections to my appointing him as the governor.”

  He then accused Frémont of stating that he intended to see Stockton to demand the governorship, and failing to get it, he would no longer obey the commodore’s orders.

  Few with any knowledge of the events in California believed Kearny’s account of the January 17 conversation. Frémont himself vehemently denied it in court, saying that he had received appointments from three Presidents, Jackson, Tyler, and Polk, but that he had never begged or bargained for one in his life. Furthermore, there was ample record that both Stockton and Kearny had offered him the governorship and that Stockton actually gave him the appointment on January 14, the day he rode into Los Angeles and delivered the Cahuenga treaty to the commodore.

  Through his direct questions and lengthy diversions disguised as questions, Frémont was able to dwell on Secretary of War Marcy’s June 3, 1846, orders to Kearny, the “Should you conquer and take possession of New Mexico and California” orders. He declared that Kearny and his Army of the West had not taken possession of anything in California, that the conquering and possessing had been done by Stockton and Frémont and that Kearny had been in no shape to possess or conquer anything; indeed, he had had to be rescued from Mule Hill after the San Pascual fight by 215 of Stockton’s sailors and marines.

  Kearny was forced to make damaging admissions. He had addressed official correspondence to Stockton as “His Excellency, R. F. Stockton, Governor of California,” which gave a tacit concession that Stockton had superseded him in setting up a civil government. And on the charge of mutiny, he admitted that he had not imprisoned or placed Frémont in irons despite the fact that mutiny was a capital offense in wartime.

  The defense was getting high scores in newspaper reports, and it was pointed out that Robert F. Stockton, a key figure in the entire controversy, had yet to take the stand.

  3

  Philip St. George Cooke testified for a week with no great consequence for Frémont. The judge advocate chose not to call William H. Emory as witness, but Frémont managed to reveal his role as probable author of a letter in the New Orleans Picayune that extolled Kearny as the hero of the conquest of California, told of the rivalry between Kearny and Stockton, and said that the commodore had drawn Frémont “on his side.”

  At last, on December 6, the first anniversary of the Battle of San Pascual, Stockton was sworn in as a witness. From the start, he proved a great disappointment for the defense and a source of frustration for the court, which grew far more impatient at his extemporizations than at Kearny’s memory lapses. Self-confident and abnormally self-possessed, accustomed to talking more than listening, the commodore gave a windy, rambling history of the war in California but seemed uncertain about specifics and vague in answering the questions both Frémont and Major Lee posed.

  He tried to be helpful to the defense, and his meandering testimony contained some coherent statements that to some extent mitigated Frémont’s actions. He said that the conquest of California had been “interrupted” by the events in Los Angeles in September, 1846, when the pueblo had temporarily surrendered to the insurgents. Peace was soon restored, he said, “and therefore there was nothing for me to do in relation to the establishment of a civil government, except to hand to Lieutenant Colonel Frémont the commission as governor, which I had pledged my word to do; which I had informed the government I would do, and which I probably would have done, on the 25th day of October [1846], if the insurrection had not broken out.”

  As to what he called “the position of the parties”—m
eaning himself, Kearny, and Frémont—he said, “in my judgment and opinion … General Kearny had laid aside, for the time being, his commission as brigadier general, and was serving as a volunteer under my command.” He asserted that after the San Gabriel battle, as their combined forces marched to Los Angeles, the troops placed by his orders under the command of General Kearny were the dragoons, sailors, and marines and Captain Gillespie’s two companies of the California Battalion, “and no other.” As to the disposition of the battalion after reaching Los Angeles, Stockton said, “On the arrival of Lieutenant Colonel Frémont, he reported to me; and I did not give, nor did I intend to give, General Kearny any control or command over that part of the California Battalion. It was under my own immediate command.” He testified that he had appointed Captain Gillespie to take command of the battalion after he appointed Frémont governor, and said, “If I understand the matter before this court, the disobedience of orders charged against the accused, whilst I was commander-in-chief, is, that he would not obey an order which required him not to recognize my appointment of Captain Gillespie as a major of the battalion.”

  At one point in the questioning by Major Lee, a significant point was made for Kearny when Stockton admitted that he had no specific orders to form a civil government in California. “I formed the government under the law of nations,” he said, without defining a law that apparently existed only in his mind.

  Archibald Gillespie testified on Frémont’s behalf, as did Lieutenant Andrew F. V. Gray and Owl Russell. Gray, the naval officer who had led the force Stockton sent to relieve Kearny and his dragoons on Mule Hill, said he witnessed Kearny’s offer to serve as Stockton’s second in command in the march to Los Angeles. Owl Russell supported this testimony and added, “I remember distinctly that he [Kearny] spoke of his intention of appointing Colonel Frémont governor.”

  At the beginning of the trial, newspaper coverage of it was extensive, with editors such as James Gordon Bennett of the influential New York Herald regarding it as the cause célèbre of the era. But as the proceedings rolled on six days a week through December and January, the tedium of dull and repetitious testimony had a palling effect. There were signs of ebbing editorial support for the defense and a growing sympathy for the old soldier Kearny, belabored at such length by defense witnesses and the relentless interrogations by the accused.

  Kearny returned to the stand on January 5, 1848, the first session of the new year, and three days later provided a startling moment in his testimony when he asked the court permission to read a statement he had prepared. The courtroom was silent as the general read in an obviously troubled voice:

  “I consider it due to the dignity of the court, and the high respect I entertain for it, that I should here state that, on my last appearance before this court, the senior counsel for the accused, Thomas H. Benton, of Missouri, sat in his place making mouths and grimaces at me, which I considered were intended to offend, to insult, and to overawe me. I ask of this court no action on it, so far as I am concerned. I am fully capable of taking care of my own honor.”

  This astonishing statement shocked the court and audience momentarily; General G. M. Brooke, president of the court, nervously said that he had not observed any offensive facial expressions of the senator’s and proceeded to read from the Articles of War the caution against “menacing” words or gestures in a court-martial proceeding.

  Then Benton, towering, smoldering, stood and ignoring admonitions that he had no right to speak at the trial, launched into a booming response, saying that in earlier testimony, Kearny had made certain insinuations and “fixed his eyes upon Colonel Frémont … insultingly and fiendishly.” He went on:

  “When General Kearny fixed his eyes upon Colonel Frémont, I determined if he should attempt again to look down a prisoner, I would look at him. I did this day; and the look of today was the consequence of the looks in this court before. I did today look at General Kearny when he looked at Colonel Frémont, and I looked at him till his eyes fell—’til they fell upon the floor.”

  The president of the court cooled the senator’s ardor by asserting that he had observed Kearny looking with “kindness” toward Colonel Frémont, and General Brooke permitted Kearny the last word on the subject: “I have never offered the slightest insult to Colonel Frémont, either here as a prisoner … or anywhere, or under any circumstances whatsoever.”

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  “My acts in California have all been with high motives, and a desire for public service,” Frémont said on January 27, 1848, standing before his accusers and judges to end the summary of his defense. “My scientific labors did something to open California to the knowledge of my countrymen; its geography had been a sealed book.”

  In the grim, gray Washington armory courtroom, he appeared anything but the vainglorious filibustero chieftain, the self promoting frontier Napoleon—and the mutineer—his opponents styled him. Nor, for that matter, did his appearance give a hint of the truer man.

  It was difficult to credit that this man, described in newspaper columns as “slight,” “trim,” “erect,” “olive-skinned,” “dark-eyed,” “sad of countenance,” “handsome,” and—often—“Gallic,” was the celebrated explorer whose name was as synonymous with the great unknown West as Lewis and Clark’s. He did not appear to be the same Frémont whose books revealed a man who found his greatest comfort among the Kit Carsons of the mountains. Was this slight, well-spoken, neatly dressed, lawyer-like figure the same man who killed Indians who opposed him, smoked pipes of willow-bark shavings, and thumbed “trapper’s butter” from the cracked bones of a fresh-killed brute buffalo among Indians who befriended him?

  His self-defense, if overlong and tedious in its drumming counter-accusations against General Kearny and his minions, had been brilliant for a man so out of his element. But as the trial lumbered to its close, Frémont, as if perceiving the inevitable outcome of it, grew more defensive, betraying, some said, the narcissism that was his fatal flaw.

  “My military operations were conquests without bloodshed,” he said untruthfully. “My civil administration was for the public good. I offer California, during my administration, for comparison with the most tranquil portions of the United States. I offer it in contrast to the condition of New Mexico during the same time.”1

  He ended his final statement with strength: “I prevented civil war against Governor Stockton, by refusing to join General Kearny against him; I arrested civil war against myself, by consenting to be deposed—offering at the same time to resign my place of lieutenant colonel in the army.”

  Then, as he placed his papers on the defense table, he said, “I have been brought as a prisoner and a criminal from that country … I am now ready to receive the sentence of the court.”

  * * *

  The court deliberated three days and delivered its verdict on Monday, January 31, 1848.

  Frémont was found guilty on all charges and every specification under each charge, and the court sentenced him to be dismissed from the service.

  Six of the twelve sitting members of the court recommended that President Polk grant clemency, issuing a statement laden with irony:

  Under the circumstances in which Lieutenant Colonel Frémont was placed between two officers of superior rank, each claiming to command-in-chief in California—circumstances in their nature calculated to embarrass the mind and excite the doubts of officers of greater experience than the accused—and in consideration of the important professional services rendered by him previous to the occurrence of those acts for which he has been tried, the undersigned members of the court, respectfully commend Lieutenant Colonel Frémont to the lenient consideration of the President of the United States.

  The six signatories, in admitting that the explorer had been caught between feuding commanders and in circumstances that would have daunted a veteran officer, had borrowed the main leaf from the Frémont defense book.

  James Gordon Bennett’s New York Herald expressed no surprise at th
e verdict, seeing “during the progress of the assizes … evidences of hostility on the part of members of the court against Lieutenant-Colonel Frémont … a greater, though a younger man, than a majority of his triers.”

  On February 16, the President responded to the recommendation of clemency and surprised the court by dismissing the more serious charge against Frémont by writing, “Upon an inspection of the record, I am not satisfied that the facts proved in this case constitute the military crime of ‘mutiny.’” He sustained the other charges and convictions but wrote:

  … in consideration of the peculiar circumstances of the case, of the previous meritorious and valuable services of Lieutenant Colonel Frémont, and of the foregoing recommendations of a majority of the members of the court, the penalty of dismissal from the service is remitted. Lieutenant Colonel Frémont will accordingly be released from arrest, will resume his sword, and report for duty.

  Despite the urgings of Senator Benton that he accept the President’s offer to reinstate him, Frémont resigned the army on February 19, 1848. He was not guilty of any of the charges against him, he said, and to accept Polk’s remission of his sentence was tantamount to admitting guilt.

  As he saw it, it was a matter of honor: he had been in California before the conquest began, had had a role in starting it, had seen it unfold, had seen it botched to near ruination by two warring officers, had won the surrender treaty at Cahuenga Pass, and suffered the consequences of being forced to choose between the two lesser men who were his superior officers.

  Ten days before the court’s verdict, Frémont had passed his thirty-fifth birthday.

  He had time for other conquests.

  Epilogue

  1

  On January 24, 1848, a week before the court-martial verdict, gold was discovered at a sawmill owned by John A. Sutter on the South Fork of the American River. The man who first saw the gleam in the millrace was James Marshall, the eccentric New Jersey wheelwright who had ridden with Frémont, Segundai, Gillespie, and Kit Carson into Sonoma after the skirmish at Olómpali.