A statement of the facts, pertaining to the proclamation of martial law over Pierce County, W.T., by Gov. Isaac I. Stevens and the proceedings of the court martial in the attempt to try citizens for treason, containing the governor's vindication and the trial and discharge of these citizens

University of California • Berkeley

A STATEMENT

OF THE FACTS, PERTAINING TO THE

PROCLAMATION OFMARTIALLAW

OVER PIERCE COUNTY, W. T., BY GOV. ISAAC

I. STEVENS AND THE PROCEEDINGS

OF THE COURT MARTIAL IN THE

ATTEMPT TO TRY CITIZENS

FOR

TEE AS

CONTAINING THE GOVERNOR'S VINDICATION AND THE
TRIAL AND DISCHARGE OF THESE CITIZENS.

STEILACOOM, JUNE 24,

1856.

.17

h

NOTE.

Several persons in Pierce county W. T. were arrested by order
of Gov. Isaac 1. Stevens. A part of these persons he ordered to be
tried by a Court Martial, composed of Volunteer Officers, on a charge of
treason, but failing in this, a complaint was made to the civil
authority and the persons so complained of have been examined and dis
charged, nothing being found against them. v

Notwithstanding their discharge, certain persons still continue, to do
the accused parties injustice, it is therefore determined to give the facts
in the case, with the proceeding of both courts, that every one may have
an opportunity to judge for himself, as to the guilt or innocence of tho
accuse^, and of the propriety or impropriety of proclaiming Martial lawj
Not disposed to do the Gov. the least injustice, his vindication for his
course will be found in this paper.

JL

•.rife

MSI

.

On the 9th day of March, Isaac W. Smith, acting Secretary of the Ter
ritory by order of Gov. Stevens proceeded to older L. A. Smith, John
McLeod, Charles Wren and others in their vicinity, to leave their claims
and reside either at Olympia, Nisqually or Steilacoom. McLeod,
whose team had been pressed into the service, was consequently absent
at the time, Mr. Sec. Smith, sent him a written order to the same effect.

After a hasty preparation, these persons moved to Steilacoom, on the
12th, leaving most of their property exposed to destruction, by whoever
might chance to find it. After remaining several days in the village,
Mr. Murry, one of those who had been ordered in, wrote to Go-v. Ste
vens ibr permission to g:> home for a loa \ of provision, but received no
answtr. All the proscribed persons, aArare of the communication hav
ing been sent, were awaiting the result, until convinced that no answer
would be given, de'ermined to go without the permit. Mr. L. A. Smith,
who had a large quantity of potatoes, h-arning that they were being de
stroyed, con ti acted them at much less than their current value^ and went
to his claim, expecting the teams there next day to take them away.
The contracting parties on their way out, hearing that Smith's property
had been destroyed, turned back, and the next day Smith was arrested.
The same day Charles Wren who contracted his grain to the local In
dian agent at Steilacoom, for the use of the department, was arrested
immediately upon his arrival at home. John McLeod bearing the fol
lowing letter was arrested the same day.
41 To the Commander of Volunteer companies, Pierce county W. T.

Mr John McLeod having made an agreement with me for the quantity of
wheat he has on hand, the wheat being for the use of the friendly Indians, on
the Steilacoom reserve, and it being required as soon as he can thrash the
wheat and bring it to mill, you will therefore please render him such assistance
as you possibly can, as*it is absolutely necessary. SAMUEL McCxw.

Steilacoom March Zoi/i 1850. Spec. Ind. Agt."

The following day, Henry Murry and Peter Wilson went to camp
McLeod, to obtain permission, if possible, of the Commander of the
Volunteer forces at that place, to go homo for a load of provisions, were
arrested immediately upon their arrival at camp and placed under guard.

McLeod, Wren, John McPhail, L. A. Smith and Henry Smith, were
taken immediately to Olympia before the Governor, who ordered them
to be taken to i^t. Steilacoom, with a request to Col. Casey, to place
them in close Confinememt and there retain them until the close of the
war or until he should summon a Military Commission or Court Mar
tial, to try them.

The next day after their arrest, Murry and Wilson were taken to
Olympia, and after four days had elapsed, were granted an interview
with the Governor. A few days after, at the solicitation of Dr. J. B.
Webber, the following permit was given them :
" EXECUTIVE OFFICE TEH. WASH. APRIL TTH 1856.

Messrs. Murry and Wilson, have permission to go to Steilacoom, Dr. Web
ber agreeing to be responsible for their remaining there. They will not be al-
t:o 1$«VY$ Steilacoom, except under a permit, signed by me.

ISAAC I STEVENS Gov. and Coin'd.-iu-ChieC'

This order Mid permit, have not, up to tin's date, been revo ked, ar.d
Messrs. Marry and Wilson, are still prisoners, although they have not
been charged with anything. Mr. McPhail and Henry Smith have r.l-
8O, without charges being preferred against them, been retained as pris
oners, allowed however, with a written permit, to return to Steiia-
eoom on parole.

About the middle of April, Mr. Murry again addressed a note to the
Gov., for permission to go home for provisions and was refused.

The prisoners who were confined in the guard house at Ft. Steila
coom, made application to Judge F. A. Chenoweth, for a writ of Habeas
Corpus, whereupon Gov. Stevens declared Martial Law. (xcc last page.)

Finding that Col. Casey would not refuse to obey the civil Jaw, and
that the prisoners would be given up upon the service of the writ, Gov .
Stevens removed them again to Olyrnpia.

At the time appointed by law for holding" the U. S. District Court
for Pierce county, Judge F. A. Chenoweth was unable, from severe ill
ness, to attend, and made a written request to Chief J ustice Lander, to
hold the said court in his stead. Judge Lander arrived at Steilacoom
on the 5th day of May and finding that he would be forcibly prevented
from holding court and being desirous to prevent a collision between
the civil authorities and the volunteers, adjourned court until Wednes
day the 7th, for the purpose of writing to the Governor and inducing
him to revoke martia \ law. The Governor however refused to do
*o, and sought to instruct Judge Lander, that he might adjourn from
any time until the next term of the court.

Judge Lander, conceiving he had done his duty, proceeded to the Court
House and opened court in due form, and caused the Grand Jury to be *
empanelled and qualified. During this time, the court was interrupted
by Lieut. Col. Shaw warning the Judge that he had orders to arrest
him,*to which the Judge made no reply, but directed the Dept. U. S.
Marshal to enforce order in court and prevent any armed men (there
being some twenty in the house and about forty without) from entering
inside the bar. Col. Shaw still persisting in his intention and the Dpty .
Marshal being unable to prevent their entry without the assistance of a
posse ^ which the Judge refused to call, to prevent the effusion of blood)
the clerk was ordered to record a fine of one hundred dollars against
every man who came inside the bar with arms in his hands. The Grand
Jury were also directed to retire to their room, and have not yet been
discharged. Finding that Judge Lander could not be intimidated into
submission, the volunteers under orders of Lieut. Col. Shaw, proceeded
to force him from his seat, and the Clerk, John M. Chapman from his
desk and taking both under an armed force, to Oiympia, to answer be
fore Gov Stevens for disobeying his edicts.

After two or three days,. the clerk was discharged with the threat that
if he ventured to do any more business he would be arrested and put in
close confinement. [Judge Lander attempted to hold court at Olympui.
Martial law was declared over Thurston county and he taken prisoner
and sent to camp Montgomery.]

Immediately upon the removal of Judge Lander from the courthouse
in Steilacoom, the members of the Bar and citizens met and each in the

most solemn manner condemnened the transactions of the day as dan
gerous and despotic. Upon the receipt of this information, Gov. Ste
vens published the following vindication.

" The undersigned h;is had his attention called to a circular, expressing the views of the bar and of
I1!*1 the citizens of Pierce county in regard to his recent actions as executive of the territory, in pro
claiming and enforcing martial law in Pierce county.

•' At a public meeting of the said bar and of the citizens, the course of the undersigned is pronounced
(lemwHc and unnecessary, and a solemn protest made against it as a most dangerous and unprece
dented invasion of the rights of the- judiciary, and as an act which called for the prompt interferenc»
and action of the national government.

" The views of sa'd bar and citizens as embodied in resolutions, are prefaced by a statement of th*
facts, go'n<r to show that there was scarcely even a pretense of a cause for the action of the execu
tive in suspending the functions of the court.

u This net only'cont lins palpable, errors of fact, but the whole paper is highly colored, and is calcu
lated to give a wrorg impression of the actual condition of aff-iirs in that county.

" The underp'phed deems it therefore due to the vindication of his own official action to present
the reasons and facts, why in his judgment he was called upon by an over-ruling public necessity to
proclaim and enforce inarib'l law.

" On the 3d day of April, lS!>fi, martial law w««s proclaimed in and throughout Pierce county by the
nn-ler<»igned for the reasons set forth in his proclamation in these words: (See l«st page.)

" What was the condition of the territory and of Pierce comity at the time of issuing that proclama
tion, and what ha* been its condition for months previously?

" An Indian war had been rag'nsr. where neither ape, sex or condition had been spared, whole fam
ilies had been inhumanly massacred, alarm and consternation pervaded the whole territory. The
setlers of the terri'ory we e in a state of siege, families 1'ving in b'ock-houses with a few men, and
the majority of citizens in arms, actively pursuing the enemy in order to end the war.

" There was however, an exception n« regards " certain evil disposed persons " of Pierce county.
They remained in securi'y on their claims, receiving the visits of the hostiles, furnishing them with
provisions, pr'vinsr tbem infonmtinn. acting as their spies, and in every way affording them aid and
oomfgrt. These persons lived on the o"ts'kirts of the settlements, in posit'ons where the Indians had
easy access to them, and on *he l;ne where were the depots of the military operations, and which wt*
the b^^e of the military movements.

" There i« grave can*;; o'bere' not only that these persons fraternized with the hostiles, but that
they were the main nrVinal canse of the war, and at a meeting last Christinas they determined to
keep np the war confident thn* they would be ga;ners by it'

" AH these are matters o' public notor'erty arid have been for many months. The attention of th«
undersigned was called to it, imTred'-it -ly on his return by acting governor Mason, who expressed tLc
judgment, that at least they should be at once ordered in, and removed from the theater of activo
nprrat'ons.

" His attention was afterwards called to it by thnt " veteran and energetic " officer. Lieutenant CoK
( iasey, commanding the military district of Pnget Sound, and who had been informed by an Indiaa
l>riso er from Leschi's camp that the movement of the troops had been communicated to Leschi by
*ne of those " ivil disposed persons."

" The undersigned was unwiHin? to- resort, to Inrsh measures unless an imperious public necessity
demanded it, and he l!mi*ed his action to calling the attention of the military to those men, and to di
rect that they be. carefully witched.

" The. murder of White*' nd Northern, ft decided what was his duty in the emergency. These mur
derers had the'r hiding places in the N'sqnal'y bpttom, and drew supplies from these " evil disposed
persons." Th'-y were m*t and greeted by them in friendship with the blood yet on their hands.

" The undersigne-1 accordingly determined to order them in as a preliminary step, and to execute
this duty, lie secured the services of a most prudent and efficient man, Isaac W. Smith Esq., the act
ing secretary of the territory.

" The order wns executed with kindness and moderation. Several days were allowed to take awaj
their effects. They hnd the choice of residence, Olympia, Ft. Nisqually, or Steilacoom, arid arrange
ments were made to furnish them with provisions.

u So great was the public ind'gnation at this time, that it was an indispensible measure of precau
tion, in order *o protect the lives of tbese persons from the justice of an outraged community.

" The arrest of these " evil disposed persons " had the most happy effect upon the friendly Indians. '
who believed and knew tha.t they had stirred up the war and confederated with the hostiles. The
friendly Indians hecnn to have confidence in an authority which treated all enemies as enemies, even
t.houih some had the skins of white men.

" In defiance of these orders, these setlers returned to their claims, and re-established intercourw
with the Indians. The military officers sent them in, stating that they had acted as spies and had
pa.ra'ized their operat'ons.

" Accordingly they were sent to the station at Steilacoom under charges, and Lt. Col. Casey re-
tfeived them.

"It. may be asked here, how it was that these tnen were able to keep up intercourse with the hostlles
wilder the circumstances.

" These men have Indian wives and families, who have connexions in the hostile bands, fathers,
brothers, and other near relatives, and so far as the undersigned is informed, they sympathise with
them in the war. These " evil disposed persons " are mostly the retired servants of the foreign cor
porations in our midst, and they have a deadly antipathy 'to the dominant, that is the American
power here. .

" In connection with these reasons of public necessity for proclaiming: martial law, it will be perti-
»ent.«to correct some of the mis-statements of the circular.

" It is not. true that Lt. Col. Casey refused to receive the prisoners. He did recieve them, but vrhea
*he writ of habeas corpus was about to be issued, and the undersigned in consequence proclaimed

martial law, he asked to be relieved of their charge, doubting whether the proclamation could relieve
him from the obligations of obeying the requisitions of the civil authority.

" Nor is it tme, as stated in the circular, that all the persons under charges were at Olympia, a
portion were at Steilacooru, and the remaining persons ordered hi were either at Steilacoorn, or Ft.
Nisqually, within the limits of Pierce county.

" Nor is it true, as st ited in the c'rcular, that the Indians have been so far subdued, as that these per
sons could not communicate with them. The hostiles have infested the Nisqually bottom within the last
fortnight, and they could have access to these settlers without much difficulty, whatever was the num
ber of troops operating against them, unless each of theso persons was under a constant guard, and
his family under guard also.

"These are facts well known to all persons acquainted with the Topography of the country, and the
situation of the claims of these persons.

" Nor is it true that the proclamation was sent only to a few Military officers. It was posted uj»
publicly at Steilacoorn, and was known to every citizen of the county.

"When the undersigned learned that a writ of habeas corpus was about to issue to free these " evil
disposed persons " from the power of the Military, he determined to meet it by the proclamation of
martial law.

"The writ of habeas corpus could not only be issued in favor of the persons in confinement at thu
Station near Steilacoom, but also in favor of those on parole, at Nisqually, Steilacoom and Olympia.
The result would have been to paralize the military in their exertions to end the war, and to send in
to their midst a band of Indian spies and sympathisers. There would have been at once a conflict
and lives would have been lost.

" It is true that since the proclamation of martial law a great change for the better has taken place
in the condition of the war. Through the vigorous action of all the troops, regulars and volunteers,
the Indians have been repeatedly struck, many have been killed and taken prisoners, and the hope
is indulged that in a few weeks the war may be ended.

" Yet eveiy reflecting man must see that this is the critical period of the war, when it is to be de
termined whether the war can soon be ended, or whether the contest is to be continued another year.
Within ihe last fortnight, houses and barns have been burned in The county of Thurston. The Indi
ans have announced their determination to lay waste the settlements. Those east of 'he Cascadei*
have declared they would transfer the war to the Sound, a measure to be apprehended in view of the
known fact that they have had the services of one band of sixty m n, commanded by the son of the
Yakima chief, Owhi. It is no time for the nefarious practices of Indian spies and syu pnthizers.

»4 At this critical stage, therefore, the undersigned learned with great surprise that the court was to
be held by Chief Justice Lander ; and he was the more astonished at the reasons given by the'Chief
Justice in the letter from hin to the undersigned, which is referred to in the circular.

" The undersigned had given, as the circular states, orders to Lieut. Col. Shaw to examine the con
dition of things, and to advise him of the earliest practicable period it would be safe to revoke
martial law.

" The report of Col. Shaw was, that it was indispensibly necessary to enforce martial lave. A let
ter from him w'.ll accompany this paper, giving his reasons therefor.*

" The reasons of public necessity for holding the cournt, as set forth in the letter of Chief Justice
Lander and in the circular, though they do not touch upon the principle of the case, need to be re
ferred to as illust-ative of the spirit of the whole transaction. It is said that, one of the cases was*
a suit of the United States r*. the former Collector of Puget Sound and ought to be tried. Now tln.«
case was originally brought before the courts of Thurston county, and a change of venue was had to
Pierce county, in Judge Chenoweth's district, on sworn affidavits that Chief Justice Lander wax
prejudiced and would notify the case fairly. The other moat important-.case was changed from
Thurston to Pierce for the same reason.

" As to the danger of col ision which is referred to, it may be said the event showed no such danger.
The armed force was small. A great portion of the citizens of Pierce county are in the field against
the enemy, a'id are well advised of the necessity of the step taken by the executive.

" The unders'gned did unquestionably suggest to Chief Justice Lander the adjoi rn'ng of the court till
June, at which time it was believed the necessity for martial law would have passed away, and he
did venture the expression of the opinion that the power thus to adjourn the court was fairly to be
implied from the wording of the statute.

" The undersigned having come to the conclusion that martial 1 'w was indispensible to protect the
lives of the citizens, for reasons set forth in this paper, determined to enforce it by the arrest of the
Judge and Clerk, which was done with moderation and decorum by Lieut. Col. Shaw.

" It is simply a question as to whether the executive has power, in carrying on the war, to take
a, summary course with a dangerous band of emissaries, who have been the confederates of the In
dians throughout, and by their exertions and sympathy can render, to a great extent, the military
operations abortive. It is a question as to whether the military power, or public committees of the
citizens without law, as in California, shall see that justice is done in the cas, .

"And he solemnly appeals to the same tribunals before which he has been arraigned in the
circular, in vindication of his course, being assured that it ought and will be sustained as an impe
rious necessity growing out of the almost unexampled condition of things-.

ISAAC I. STEVENS,

Olympia, May 10, 1856." Governor Territory of Washington

* Col. Shaw says that he did preface a note to the Gov. that martial law could be dispensed*with
but afterwards becoming convinced of its necessity, he recomended it be enforced.

Instead of these " evil disposed persons " being " exceptions," there
were at the time of their arrest and still are several families living in
different parts of the county, and in exposed situations, who have never
been interrupted. The Indians have preferred a system of thieving,

rather than the more dangerous one of murder, and the settlers that
have staid steadily at home, since the first wild burst of savage frenzy
that moved the Indian at the commencement of the war. have succeeded
in saving their property. The murder of White and Northcraft is the
exception and the band of Indians that committed this deed have ever
since contented themselves, with secreting in the woods, stealing and
destroying property where there was least danger. And instead of
these " evil disposed persons greeting " the murderers of White and
Northcraft in friendship, a prosecuting witness, Mr. Galagher, estab
lishes the fact that Mr Smith went forthwith and gave the information
to the volunteers, as will be seen by the conversation between Mr. Wells,
Commissary at Camp Montgomery, and the witness, as given in evidence
before U. S. Commissioner.

It is a fact that other citizens of the territory, some of them in ex
posed situations and hi the vicinity of where those murders were com
mitted, were then on their claims and with the spirit that has character
ized the hardy pioneers, not only of this community, but of the whole
American people, chose to remain and defend their homes to the last.

As to the time allowed for removing their effects, we insert the fol
lowing letter, which was sent to Mr. McLeod.

" WASHINGTON TERRITORY, MARCH 9 —

Sir: '

I am instructed by the Governor to require you to remove to Fort Nis-
qually, without delay, with your family. I shall be absent for a day or two,
and like to find you in readiness to remove on my return.
Very respectfully yours,

ISAAC W. SMITH, Acting Sec. W. T."

But desirous that the whole matter go before the public unbiased,
we forbear further comment.

pie proceedings of the Court Martial and of the examination before
the Commissioner, are exact copies of the original records.

•
COURT MARTIAL.

CAMP MONTGOMERY W. T., MAY 20m 1856,

iProceedings of a General Court Martial or Military Commission, convened at
^Camp Montgomery Washington Territory, by virtue of an order from Isaac I.
Stevens Governor of the Territory of Washington and Commander-in-Chief of
the volunteer forces thereof.

12 O'CLOCK M. MONDAY, MAY 20ra 1856.
The Court met pursuant to the said order. Present,

Lieut. Col. J. S. HURD, Aidccarap to Commander-in-Chief

Major H. J. G. MAXON, Southern Batl. 2nd Regt. W. T. V. ' v,;i

Capt. C. W. SWINDLE, 2nd Regt. W. T. V.

Capt W. W. DBLACY, 2nd Regt. W. T. V.

Lieut. A. SHEPHERD 2nd Regt. W. T. V.

VICTOR MONROE, Judge Advocate
QINCY A. BROOKS Recorder.

, The order convening this Court not being present, the Court adjourned un
til to-morrow at 12 o'clock M.

CAMP MONTGOMERY, 12 O'CLOCK M. MAY 21 ST. 1856.

The Court met pursuant to adjournment, The following is the order con
stituting this Court and which was omitted to be inserted in yesterday's pro
ceeding, to-wit :

" Special Order, Office Adg't Gen1!. W. T. V. Olympia May 16th 1856.
A General Court Martial, or Military Commission will assemble at Camp
. Montgomery/on the 20th of May 1856, for the purpose of trying such persons
as may be brought before it.

'(Signed) JAMES TILTON, Adg't Gen.

By order of the (Jov. and Com'd-in-Chief W. T. V." *

u Members of the Commission, Lieut. Col. Hurd, Maj. Maxon, Capt. DeLacy,
Lieut. Shepherd, Supernumerary, Lieut S. B. Curtis, W. T. V. Judge Advocate,
Victor Monroe. (Signed) JAMES TILTON, Adg't Gen. W. T. V."

Present, Lieut, Col. Hurd, Major H. J. G. Maxon, Capt. C. W. Swindle,
Capt. W. W. DeLacy, Lieut. A. Shepherd and Supernumerary S. B. Curtis.

Present also the Judge Advocate and Recorder. The Recorder, at the re
quest of the Judge Advocate, read the order convening this Court. The lie-
order, at the request of the Judge Advocate, read the charges and specifica
tions of charges against Lyon A. Smith, Charles Wren and John McLeod. The
Judge Advocate then made a written application* (A) appended to these pro
ceedings, asking an adjournment of the Court, in order to obtain authority to
amend the charges. Thereupon the Court was cleared for deliberation and
after mature deliberation, the Court adjourned until one o'clock p. M.

CAMP MONTGOMERY W. T., 1 O'CLOCK p. M. MAY 22o 1856.
The Court met, pursuant to adjournment. Present, Lieut, Col. J. S. Qurd,-
Maj. H. J. G. Maxon, Capt. C. W. Swindle, Capt. W. W. DeLacy, Lieut. A.
Shepherd and Supernumerary,. Lieut. S. B. Curtis. Present also Judge Advocate
and Recorder. The Judge Advocate presented a 4th specification ordered by
the Commander-in-Chief, which was ordered by the Court to be filed and which
is annexed to the original specifications.

The Judge Advocate asked leave to amend the phraseology in the second
specification, substituting the word "were" for "was" in the 4th line, and in
the 8th line the word " they" for "he." Whereupon the Court was cleared
for deliberation and after mature consideration, the Court ordered the pro
posed amendments to be made. A copy of the 4th specification having been
delivered to Lyon A. Smith, Charles AYren and John McLeod, the orderly ser-
"•eant, brought into Court, Lyon A. Smith. The Judge Advocate read aloud to
The prisoner, the order convening this Court and the charges and the specifica
tion of charges (marked B. appended to these proceedings) and asked him if
he had any cause of challenge, to any member of the Court mentioned in the
warrant order, to which the accused answered he had no objection to any mem
ber of the Court. The Judge Advocate administered the oath prescribed by
law, to all the members of the Court and to the Supernumerary, and the Pres
ident Lieut. Col. J. S. Hurd, administered the required oath to the Judge Ad
vocate.

The prisoner asked to be allowed as council Wm. H. Wallace, B. F. Kendal
and Frank Clark Esqrs. Whereupon the Court was cleared for deliberation,

and after mature deliberation granted the request of the] prisoner, and allowed
said gentlemen to act as his council.

The prisoner by his council then offered a written protest or plca^C) to the
jurisdiction, appended to!] these proceedings. The Judge Advocate phaving
asked for time to reply to the plea of the prisoner, the Court adjourned un
til to-morrow at 8 o'clock A. M.

CAMP MONTGOMERY W. T., 8 O'CLOCK A. M. MAY 23D 185C.
The Court met pursuant to adjournment. Present, all the members of the
Court, Supernumerary, Judge Advocate and Recorder.

Ly.m A- Smith, the accused, also present. Upon reading the proceedings
of yesterday, the prisoners' made the following written request:

Mr. President, — L. A. Smith requests that the plea to the jurisdiction be
copied into and form a part of the record of the trial. L. A. SMITH.

The Court was cleared for deliberation and after consideration the Court or-
. dered the pita to be entered on the record and is as follows, viz

Mr. President, — Lyon A. Smith protests against the competency of this
Commission or Court Martial, for want of jurisdiction, on several grounds,

1st. The allegations and charges set forth in the specifications, constitute
the crime of treason, which can alone be tried in the civil courts of tho United
States.

2d. Citizens cannot he tried either by Courts Martial or Military Commission.

3d. This is not a legalh* constituted tribunal, i nasmuch as the Volunteer

forces of this Territory are not organized under the Militia law of this Territory,

or under any law of the United States and that this Court has been ordered by

u person incompetent, legally to do so.

4th. That neither Militia or Volunteer forces, until mustered into the ser
vice of the United States, are amenable to or authorized to institute an}' Milita
ry Court, as they have no authority conferred by the constitution and laws of
the United States or by the statutes of this Territory.

5th. That the order for this Court Martial or Military Commission, makes
it a special Commission and does not designate the persons to be tried by said
Commission. . Lyon A. Smith-.

The Judge Advocate, then read the following paper, marked (D) viz.
Mr. President and gentlemen of the Court, — The allegations and charges set
forth in the specifications against L. A*. Smith the accused, are that he did
knowingly harbor, protect and assist with victuals, ammunition, shelter, sym
pathy and friendship, certain marauding bands of hostile Indian*, waging un
lawful war in Washington Territory, against the United States. And any per
son guilty of such an offence is subject to the jurisdiction of a Court Martial or
Military Commission, whether he be a citizen or alien.

This is a legally constituted tribunal, having been called by Isaac I Stevens,
Governor of the Territory of Washington and Commander-in-Chief of the Vol
unteer forces of the territory, now in the field, called out by his proclamation
and co-operating with the regular forces against the common enemy, now wa
ging war in said Territory against the United States. The said Isaac I. Stevens
in his capacity as Coinmander-in-Chief being perfectly competent to call out
such forces. The warrant order for this Court Martial or Military Commission
does not make it a special commission, but on the contrary, it is a general com
mission, to try all persons that may be brought before it, and under the
charge and specifications filed against the accused, he has been regularly
brought before this court.

It is therefore asked that the protest or plea of L. A. Smith filed, may be
overruled and that he be required to answer over. V. MONROE.

Judge Advocate.

Whereupon the court was cleared for deliberation and after a short time
spent in consideration, the court was opened, the prisoner brought in and the

10

President announced that the decision of the court would be made known at
1 o'clock, this afternoon, to which time the court then adjourned.

CAMP MONTGOMERY W. T. 1 O'CLOCK p. M. MAY 23n 1856.

Court met pursuant to adjournment. Present, all the members, Supernu
merary, Judge Advocate, Recorder and L. A. Smith the accused. The court
was then cleared for deliberation and after mature consideration the court gave •
the following opinion, viz.

The charge against Lyon A. Smith is "aiding and comforting the enemy."
AVe are of the opinion that such an offence constitutes the crime of treason,
and that this court has no jurisdiction as a military court to try and punish a
person for such an offence.

We are however of the opinion that this court was ordered by a competent
authority, and that it is legally and constitutionally created and hasjurisdiction
of such crimes as are cognizable by military tribunals.

The court then adjourned until Monday May 26th 1856. at 1 o4clock p. M.

Liut. Col. JARED S. KURD. Pres.
Maj. II. J G. MAXON. S. B.
Capt. C. W. SWINDAL, 2d Regt. W. T. Y.
Capt. W. W. DELACY, W. T. V.
ANDREW SHEPHERD.

CHARGES AND SPECIFICATION OF CHARGES AGAINST LYON A. SMITH. — CHARGE
— Aiding and Comforting the Enemy
IST SPECIFICATION.

In this that during the period between the 1st of June 1855 and the 20th of
April 1856, the said Lyon A. Smith did in divers ways, exhibit friendship for
und did give aid in furnishing shelter to certa n Indians at war with the United
States, during a part of the above period.
2o SPECIFICATION.

In this that the said Lyon A. Smith did pretend to a right to be neutral in a
war in which he, as a citizen of the U. S.. was bound to give aid to the Milita
ry of the .United States, and that he neglected to give information relative to
the movements of maurauding bands of Indians engaged in unlawful war, when
he could have given such information conveniently, tut did not until the pos
sibility of such information being useful to the Military of the U. S. had ceased
from lapse of time.
3D SPECIFICATION.

In th's that the said Lyon A. Smith was cognizant of the designs of certain
Indians to make war upon the citizens of the U. S. in Washington Territory,
and did' not use any endeavors to prevent such unlawful war, nor inform the
authorities of said Territory of such designs.

(Signed) JAMES TILTON, Adgt. General W. T. Vol.

By order of the Gov. and Commander-in-chief.
4TH SPECIFICATION.

tin this that on the tenth day of March 1856, the said Lyon A. Smith, Charles
Wren and John McLeod were ordered by Isaac I Stevens, Governor and Com
mander-in-chief of the volunteer forces of Washington Territory, to retire from
their land claims (situated ,n the country inhabited and infested by said mau
rauding Bands of hostile Indians, waging unlawful war against the United
States) and to take up their residence, until the termination of Indian hostili
ties, in either the town of Olympia or Steilacoom or Ft. Nisqually, that the
said Smith, Wren and McLeod did withdraw from their said land claims, but
afterwards without authority or permission, returned to their homes to re-es
tablish unlawful communication and intercourse with said hostile Indians by
relieving them with victuals and ammunition and knowingly harboring, pro-
Acting and holding correspondence with them.

(Signed) JAMES TILTON, Adgt, General W. T. V,.

By order of the Commander-in-chief W. T. Vol.

11

• P

Not being able to obtainjthe remainder of the proeeclings of the Court
Martial, it is impossible to publish it. On the 29th day of May, Capt.
W. W. DeLacy, a member of the Court Martial, who without hearing
any testimony, makes oath that he verily believes the persons (naming
those they had been attempting to try) have been guilty of aiding the ene-
myand prays that the charge be inquired into.

U.'S. COMMISSIONER'S COURT.

United States "] CHARGE. " Giving aid and comfort to ike Indians

vs | with whom the United States are at war."

Charles Wren, }•

Lyon A. Smith Before J. M. Bachelder, U. 8. Commissioner, 3d

and John McLeod. J Judicial district Washington Territory.

W. W. DeLacy having made oath against the defendants named, as will ap
pear by the affidavit fa'led herein, in words and figures following, that is to say,

" W. W. Delacy personally appeared before me this 29th day of May, A. D.
1 856 and made the following affidavit : that Charles Wren, Lyon A. Smith and
John McLeod, between the 1st day of October 1855 and March 1856, as he
verily believes were in the habit of giving aid and comfort to the Indians with
which the United States were at war, he therefore prays that said charge may
be inquired into by the court. (Signed) W. W. DELACY.

Subscribed and sworn to before me, this 29th day of May A. D. 1856.

(Signed) P. A. CHENOWETH, Judge."

And the said Judge (F. A. Chenoweth) having ordered a warrant to issue, di
rected to the U. S. Marshal of said Territory for the arrest of said Charles
Wren, Lyon A. Smith and John McL"od returnable before James M. Bachelder
U. S. Commissioner, in and for the third Judicial District of said Territory, anu
thereupon, and before the issuing of said warrant, the said Charles Wren,
Lyon A. Smith and John McLeod, did give themselves up to the said Marshal,
and duly appeared before the said Commissioner, attended by their council.

And now, Saturday May 31st 1856 \ the affidavit tiled herein is read to the
said defendants and a copy of the list of witnesses, to be examined on the part
of the United States, is served upon the defendants.

And it aopearing to the commission that the United States District Attorney
of the Territory was not present, Victor Monroe, Esquire, was appointed to act
as District Attorney pro tern.

Archibald Taylor, produced and Sworn.

Do you know anything of the defendants having committed the crime
charged? »

Ans. I do not.

Lieut. Silas R Curtis (of Capt. Maxon's company "W. T. V.) produced,sworn
and examined.

Do you know these defendants f

Ans. I do.

Were you at the house of either of these defendants on Christmas night f
Ans. I was not.

Do you know of your own knowledge of either of these defendants having
tided the enemy ?

Ans. I know nothing but circumstantial evidence.
State what.

On the 20th of March I went up there to McLeod's with a wagon. Sa\r

12

• -

a potatoe hole freshly opened and mocasin tracks near it. McLcod was not
there — saw him at Murry's — spoke to him — asked him if he staid at his place.
He said he staid at the barn. He said he knew of no Indians about there.
We staid thereabout until Mr. McLeod was arrested. Guns were occasionally
i\red abou t McLeod's house. Saw McLeod go into the timber several tim^F.
After his arrest, the next day, hooting and the report of a gun, was heard in
the direction of the timber.

Where mere those guns fired, and do you know who fired them?

Ans. 1 do not know. It was between the 20th of March, and the first of
April, he used to go into the timber.

What conclusion did you- form ax to the communications of McLeod, with
the Indians ? *

Question objected to, by defendants, and objection sustained.

Joseph Thibeau, appeared, and was excused from further attendance at the
request of District Attorney.

There being no other witnesses in attendance, upon the application of the
District. Attorney, adjourned until Monday, the 2d day of June at 9 o'clock.
MONDAY, JUNE, 2d. 1850.

Met pursuant to adjournment. Elwood Evans Esq., appeared and filed a
certificate of his appointment by Hon. F. A. Chenoweth, Judge &c., to repre
sent the United States, in the present examination.

William Olute, produced, sworn arid examined.

/State, what you know of this matter.

Charles Bell and myself, went from camp on Christmas, to go to Sandy
Smiths, Lyon A. Smith is the man I mean. He is known every where as San
dy Smith. Went to Mr. Murry's Mr. Murry was lying on the porch with
his feet frozen. Wren, Sandy Smith, Ross and Bell with us, went over to
Smiths. While there, Wilson and another man came in. Soon an Indian
came, Winyea by name — Came for "cultis." — had no gun — hkd on, green
blanket — said he was alone. I went put — saw other Indians on horseback.
Went in — saw Winyea, putting money into a purse. I told Wren we ought
to arrest this Indian. lie said he thought it unsafe, as they were without
urrns, and the Indians were armed. In the morning saw John McLeod. He
said Indians came to his house, and he gave them some potatoes.

Peter Butler, produced, sworn and examined.

I was at work at Wrens. I heard a party of Indians, coming as I thought.
1. told Mr. Wren so. We armed ourselves — soon someone knocked at the door
— Wren asked who it was. Indian answered, Slackamas. I advised Wren to
open the door. Wren did so. Slackamas and others came in — said Leschi,
wished him to talk to the tyee, about peace. They said they did not desire the
friendly Indians to come to their camp, as they could not believe them.

Dr. Wm. F. Tolmie, produced, sworn arid examined.

State what you know of your own knowledge, about this cluirge against the
prisoners.

I know that Mr. Burge one night last winter, came to my house for a hone,
k> go to Steilacooin, to let Capt. Keys know that Indians had been to Mr. Smiths.
In February last, McLeod came to tell me that Leschi, had left his house that
morning, and desired him to come to me. I do not know how long he was
there — Leschi desired peace, and wished McLeod to say that he had ahvayn
been friendly to the whites. Leschi wished me to go out with McLeod to seo
him, but revoked the wish through fear that soldiers would come, while he
was waiting, Mr. Wren came in and said Leschi and others, had been at hig
house and desired peace. Mr. McLeod went to Steilacoom with me, to tell the
officers at the Post. I heard from Mr. Burge that Indians had been at Mr.
isiniths — Mr Burge said merely, that the Indians had been there, and I inferred
from his conversation that Wren, Smith and McLeod, wanted aid from Steila^

V if

13

coom. Oar Shepherds of the Puget Sound farms were out in that region, guard
ing their sheep and were not molested. Mr. Murry was taken as an
American, and lived there. McDonald who lived at McLeod's, and now live*
at Victoria Vancouvers Island, said to me, that McLcod had offered him twen
ty live dollars, to report these Indians to the Post at Steilacoom.

Isaac W. Smith, (acting Secretary of the Territory,) produced and sworn.

State what you know of your own knowledge in regard to these defendants.

I was sent by the Governor, to order these men in fnorn their claims. Sandy
Smith remarked he thought it hard, to drive him in from his claim. After ar
riving at Olympia, I asked him, Smith, if he would shoot an Indian, if he saw
one. He said no. That he desired to let the Indians alone if they would him.
The day I went out from Olympia, the body of Northcraft was found, and I saw it.

1 think Smith told me he saw the Indian who had been supposed to have
murdered Northcraft. When I was ordered out I was told to take a large
force on account of danger from Indians.

Crosx examined by defendants.

Mr. Northcraft was killed near Yelin prairie, ten or twelve miles from the
defendants. Mr. White nearer Olympia. Captain Ford and Mr Gosnell told
me they had traced the Indians in the direction of the country in the neigh
borhood of Wrens, Smiths and McLeods.

Henry Smith, sworn.

I know the prisoners at the bar. I saw an Indian at Sandy Smith's house
on Christmas day. 1 do not know that they gave the Indians anything. Mr.
Smith asked the Indian where he came from. He said from the Pityallup.
He asked the Indian what he wanted. lie said he thought Sandy Smith was
at Nesqually, and not living at his place. Mr. Smith asked what he wanted, if
he thought no one was living there. He said he was only looking around. I
left Smiths and went over to Mur»ys. McLeod came next morning, and said
.some Indians had been at his house the day before. He said Leschi was there.
This was the morning after Christmas. I thought they came to steal whatever
they could. He was there when I left. This Indian is reported to be one of
Leschi's band. McLeod said he offered a man twenty dollars, to go into Steil
acoom, and report the Indians there, and he was afraid to go. I do not know
of any Indians having visited Wrens. McLeod told me after that, that some
Indians came there, expressing a desire to make peace. These defendants were
not disturbed ; when Sandy Smith left, his house was broken into.

Pei-er Wilson, produced sworn and examined. .

I know these defendants. I saw one Indan at Smith's house on Christ
inas day, an old Indian called Winyea. Said he came from Puyallup.
He said he thought Smith had moved to Nisqually, and came to see. " I left
him there. I know nothing else, having lived at Steilacoom.

Charles IF. Bell, produced, sworn and examined.

I know the deieadants.

Do you know of these men or either of them, having given any information
food or other aid to the hostile Indians ?

I know nothing of the matter. I belong to Captain Maxons company. 1
was living at Mr. Wren's. I was arrested with Mr. Wren — saw Mr Smith ar
rested — .*>aw nothing at Mr. McLeod. 1 lived at Wrens twenty five days —
*aw no Indians there during th^t time. I belonged to Capt. Wallace's compa
ny. I was at Mr. Smiths on Christmas, and saw Indians — there were more
than live in number there, who came in the night, and stopped some live min
utes — I did not know either of them. The Indians spoke in their own tongue,,
and I could not understand them. The Indian came in, lighted his pipe, and
talked with Mr. Smith's wife, an Indian woiium, and left. Sandy Smith was
there, but said nothing. I know nothing of Indians having visited McLeod'*
house — nerer heard McLeod say anything about the matter. 1 have stated all
1 know on th« subject.

14

The District Attorney here gave notice, that he had examined all the wit
nesses which were in attendance, and asked for au Alias Subpoena, to the
marshal, for the following persons, to-wit : William Campbell, Mari Hagit,
George Gallagher, William Legg, F. Gravaille, James Burk, William Goddard
Gordon 0. Taylor and Willam Lackin, which was issued, returnable to-morrow
Tuesday morning at ten o'clock, and tiien adjourned, until Tuesday morning at
ten o'clock, *

TUESDAY JUNE ad. 1856.

William Campbell, produced sworn and examined.

I know nothing of my own knowledge in regard to either of these parties
having afforded aid and comfort to the Indians. Nothing but what 1 have
heard at camp or from Indians. Was at Wren's house and at McLeod's. Saw
Indian tracks back of McLeod's on a little prairie, say three miles distant
The Indians had killed a beef, it waa in the latter part of March, and the beef
had been killed some four or live days before ; in fact some of the meat wa§
still there.

That country would not be safe for rne. Hostile Indians were found within
a few miles, a camp of them were found about six miles from there. It appear
ed that the Indians were travelling there, backward and forward all the time.
The Indians had stolen horsjes on Yelm prairie from Longmire's and Brail's.
By their tracks we followed them up — they crossed a creek, and the water wan
still riled. We soon found a horse which they had left. We were now goini;
from the locality of these men's places. I should call this hostile country — J
mean where they lived. I have seen them on their claims from time to time,
when I deemed it hostile country.

John Me P hail produced sworn and examined.

I was at McLeods house on Christinas night — an Indian came in and soon
after others — nine in all — one always talked. McLeod asked the Indian about
how the war began, what occasioned the beginning. He said they (the whites)
wanted to take the chief up to Olympia, and keep him there — they did not like
that, and so they began the war. They were there more than two hours.
There were four of us there — Jessee Varner, Angus McDonald, McLeod and
myself. I make out nine Indians. They came about t\velve o'clock at night.
We were playing cards. McDonald went to the door to get some lire- wood,
and the Indians met him at the door. McDonald is now at Vancouvers island ;
he went there in January. We stopped playing cards while they were there.
The Indians did no harm there and went oil'. They stole nothing, I never
heard of it. L was not present or do not know of any other visits by Indians.
George (jallaghcr, produced, sworn and examined.

I was one of the party who warned these persons in. I had charge of half
the company. I was present at Mr. Smith's place. I now mean the lirst
warning immediately after the murder of White and Northcraft. It was some
time about the middle of March, say from the lOtii of that month. I was at
Smith's house before that time. lie stated in my presence, that a party
of Indians passed that way on th v morning after the murder of White and that
they crossed Muck creek, and pointed out to me the place of their crossing.
When he saw the party, he had supposed that they were volunteers and went
toward them to give them information as to the best crossing. He had not
gone far, before he saw they were Indians and knew the crossing as well aw
he. They rode up to him. I think he said there were eleven in the party,.
They had a blue horse they were leading, and on one or more of their horse*
they had little packs, which he said he took to be Northcraft's sacks for oats.
He stated also that the Indians said that it was White's horse and that White
was killed. This occurred before they were warned in. We told Smith that
they were to be warned in. This was not the order which was executed by
Mr. Sec. Isaac W. Smith. This was the expedition under charge of Mr. Doty,
who was detained at Stcilacoom. Smith stated that he started lor camp imme-

15

dwtely after the Indians left him— to both Camp Montgomery and Fort Steil-
acoom. On my netting to Oamp Montgomery that night, Mr. W. P. Wells told
me that Sandy Smith had been there and given the information he said ho
would do.

Mr. Wren, Mr. Smith being present, asked me at Steilacoom, after they came
in, what my advice would be about going back to their claims. I told him it
would be unvnse to return without permission of the Governor. I thought he
would be liable to be shot by some of the volunteers. He then asked, what
can we do ? He wanted to get in some crops, and 1 think some produce.

I proposed their organizing a company to report to Governor Stevens, and
add to their number others above suspicion to make up the necessary force to
go to the claims of each other until their crops were all in. lie expressed his
entire willingness in the plan suggested.

The whole country, at this time, was in a state of war, and the settlements
abandoned. There were many signs of Indians in this locality. I was one o±
a guard to protect wagons — we deemed a guard necessary. After conducting
the wagons to a safe point as we thought, we left to go to Mr. Smith's house.
We met Mr. Wren, he told us that if we wished to find Indians we could find
them at a point of timber, to which he pointed, he thought we could find them
there. He was alone looking for horsey. He told us that they had rim a man
who was after Murrey's cattle, into a house. At the time I speak of, these men
and their families were on their claims — a few days afterward I found Mr.
Smith there.

It appearing by the return of the Dpty. U. S. Marshal that he had served
the alias subpoena issued on the 2nd Juno, and returnable this day, and that
Francis Gravaille, Mari Haguet and William Legg had been duly served
therewith and did not appear as therein summoned, on motion of the acting
U. S. District Attorney, It is ordered that a writ of attachment be directed to
the U. S. Marshal to take the said persons, and bring them forthwith before,
the Commissioner, and it appearing that the Marshal would require till 1 o'clock
r. M. of Wednesday to serve the said writ, the Commissioner then adjourned
the examination until Wednesday the 4th of June at 1 o'clock r. M.

WEDNESDAY, JUNE 4th 185G.

William Legg^ produced, sworn and examined.

I was at Wren's house in April last. On Christmas day last I saw ten In
dians on the Canadian prairie at LeTour's house. He is a Canadian, now at
work for Dr. Tolmie. It is four or five miles from Wren's. Among those Indi
ans was Leschi, Lula and Slackamas. These were all I knew. I talked with
them. I was lying in bed and they broke open the door and rushed into the
house. They told me they wished to make a treaty, and did not wish to fight
at all. They staid above an hour. This was between 8 and 9 o'clock at
night. I have been at Wren's house and have never seen any Indians there.
The Indians told LeTour that they were corning into Elk prairie if a treaty wan
not made, and that they were going to give the'whites a fair fight. This is all 1
know of the matter.

Wesley Gosnell, produced, sworn and examined.

I know nothing except what friendly Indians have told me.

By the return of the Marshal, this day made, it appearing that Mari Haguet
and Francis Gravaille could not be found, the District Attorney here closed on
the part of I he United States.

And now on motion of acting U. S. District Attorney, it is ordered that the
defendant, Charles Wren, be discharged from further custody of the U. S.
Marshal on the charge preferred on the affidavit herein filed, and that the said
defendant be allowed to go hence without day.

And after argument of Council being had, the Commissioner held the matter
under advisement as regards the two defendants, John McLeod and Lyon

r.r'

1C

A. Smith, and then adjourned until Thursdy morning, the 5th of June, &t
U o'clock.

THURSDAY, JUNE 5th, 1856.

And now, June 5th 1856, after mature deliberation upon the foregoing evi
dence, and the argument of the Council herein had, it is ordered by the com
missioner that the said John McLeod and Lyon A. Smith, be discharged from
the custody of the U. S. Marshal, on the charge preferred in the affidavit herein
filed, and that the said defendants be allowed to go hence without day.

PROCLAMATION.

"Whereas in the prosecution of the Indian war, circumstances have existed
affording such grave cause of suspicion, such that certain evil disposed per
sons of Pierce county have given aid and comfort to the enemy, as that
they have been placed under arrest and ordered to be tried by a military
joinmission ; and whereas, efforts are now being made to withdraw, by civ
il process, these persons from the purview of the said commission.

Therefore, as the war is now being actively prosecuted throughout nearly
the whole of the said county, and great injury to the public, and the pi ins of
the campaign be frustrated, if the alleged designs of these persons be not
arrested, 1, Isaac I Stevens, Governor of the Territory of Washington, do here
by proclaim MARTIAL LAW over the said county of Pierce, and do by
these presents suspend for the time being and till further notice, the func
tions of all civil officers in said county.

Given under my hand at Olympia, this third day of April, eighteen hundred
and fifty-six, and the year of Independence of the United States the eightieth.

ISAAC I. STEVENS."

After the proclamation of martial law, the subsequent seizure of the
Judge and Clerk of the Court, and the attempt to try citizens by a court
.martial, there had b<^en no material change in affairs, when the abro
gation which is appended, made its appearance. The prisoners were
still pressing for a writ of Habeas Corpus to bring them to trial before
the proper authorities. In fact, the U. S. Marshal was, at the time of
the abrogation, in search of Col. Shaw, to arrest him for disobedience
uf said writ.

"Whereas, certain persons charged with giving aid and comfort to the enemy,
In the existing Indian war were arrested by my orders for the purpose of bring
ing them to trial before a Military Commission ; and whereas to prevent the
execution of the design of certain evil disposed persons to take from the custo
dy of the military, the persons so charged, martial law was declared successive
ly in the counties of Pierce and Thurston, and whereas, the persons so charged
have been retained in military custody and have been brought before a Military
< Commission, and are now on their trial for the offense above mentioned, and
whereas, there is no longer any necessity, for the existence of Martial Law
in said counties;

Therefore be it known, that T, Isaac I. Stevens, Governor of the territory
of Washington, do hereby abrogate martial law in the said counties of Pierce
and Thurston.

Given under my hand at Olympia this 24th day of May, in the year of our
Lord eighteen hundred and fifty six, and the year of Independence the eighth -
ieth. ISAAC I. STEVENS.

Gov. Ter. Washington."