The daily union. [volume] (Washington [D.C.]) 1845-1857, 1856-06-07

May ~ ana ~ 1890.
[ooSrsuED.I
Mr. ADAMS wish to ask the senator a question for
incarnation. understand him TO say that when the cap
taus for Instance nquring into the efficiency Of
r.pans the junior officers not be present Were
hsy competent witnesses and they net mada wr
peses Ia this investigation, la regard to the charges
against higher officers in whose removal they direct
Mr. MALLORY, am unable to give the answer which
The senator desires do not know the fact only know
.t tey we're not preseat and know that the law dis
rncty states that they should not be present And sir
upon this point the opinion OF the Attorney General who
was freely and fully consulted by the Secretary OF the Navy
upon all the details Of these proceedings was decided He
says:
Whatever the board Of officers may report the result
ubeir consider and reflection will be advisory OF course
and bat ii is nevertheless, daty Of obvious dei
ey great Importance in 90 far may tend 10 in
m concence and influence the discretion OF the Sec
retary Of the Navy, the President.
New Il is be observed that the act in the general
course of It's provisions, speaks OF the board unit which
i 10 examine, report, and to recommend board
having conlont authority in this respect with
the nEtertha is embracing all the grades Of the
nary above that Of midshpman, the effect Of which, If there
nothing in the act TO prevent IT. would be that the five
sutsuants the board and the five commanders would
pass upon the question of the competency of their superos
The incpnvenenec Of this appears have been present
mind Of Congress- which cresaw that any action of
the officers lower rank thnse of superior rank
This matter would be subject the of interest
and possess impaired moral weight and would also have
advantageous tendencies in the relation of the discipline Of
Accordingly, the act contains the following proviso:
"'Prortded, That officers upon said board sha exam
report upon, the efficiency OF officers of grade
Apd the question to be determined is Of the whole extent
legal operation Of this proyso. Upon this my opinion
is positive and explicit.
Numerous examples might be cited in which question has
arisen to the to be pursued by arbitrator,
Judge other member of plural body when that person
h by interest other lawful impediment, precluded from
participating in the decisions and is generally held that in
such case he ought not to participate in the delberaton
which precedes the decision #..
The assigned in the books this good
If the person who has not the right to concur in the
decision participate in the debersticn, be much
not influenced the result tFex g. Hazleton TO- Pick,
N: Strong rs. Strong, Law Rep, vol. 7, p. 459.)
n the present matter another objection applies, which is
of superior officers by their peers in the Of
inferior officers having official duty in the premises
al think therefore, taat the effect Of the proviso is
quie the board be subdred in the process of its action
and to make three distinct ubrepor;s which together shall
constitute the general report.
'That say, the entire body will sit together delib-
crate and determine, and by proper means, authenticate
their conclusion to ieutenant masters and passed mid
shpen; after that, the euenauts will have retire. and
the captains and commanders will act in regard to all officers
the Of commander when the must re-
tire, and the captains viii officers Of that rank.
All the examinations having thus been made and the
Judgment reached in the manner contemplated by the law,
the total Of the opinions will be certified the Secreta-
y n such form Of auihentcaton be- in his regulations,
shall see ft 10 prescribe.
al have the honor to be, very respectfully,
"Hon. JAMES c. DounrS, Secretary Of the Navy"
As the obection that the board did not give hear
ing aad trial am glad that relieved from DISGUISE
ing this part of the subject length by the admissions
the senator from Delaware, Mr.. BAYARDl he comedies
very frankly that this board not a court though
other senator's have contended for that position He
urrenders the argument; and understood bis speech
oorrecyI have had the opportunity of reading H.
for has not been Publshedhe admitted that they
not called upon to act and investigate in public.
Mr. BAYARD. Undoubtedly the honorable senator un-
derstsnds rightly thought that the correct cousruc-
aOn Of the law ! made that objection to the law, and
considered that this required remedy It's defects
Mr. MALLORY. The honorable senator's admission on
tins point will OF course 90 much further than any argu-
nent oG4nine I only say that idea that this board
were court % give tral, hearing, and Judgment
sen they had no power TO appoint clerk TO
witness to punish for contempt maintain the order
q their own body, is TO my mind pdpabe error Did
constitute such court the constitution pro
ndes Tor What were they called upon 20 dot Why 10
report, aud do courts report2 What and TO whom we're
they TO repOrt2 Their opinions 10 the Executive Did
that constitute them oourt7 Had they in any sense Of
the term judicial powers bad they any duty perform
under the act which the Executive the Navy Depart
meat could not have imposed upon them without ;hs
We now come sir TO the second objection urged against
the boards acOnvz: that il did not make that careful
examination which the law prescribed Were Il not sir
hat the senator from Mississippi for whom have great
respect earnestly discussed this point would DISMISS IL
a. suggestive Of Us refuiAtion. Some gentlemen In
discussing this question have garsly introduced m srth-
neural calculation, based upon the number Of officers
passed upon and the time Of tho boards session. to show
ha' hssn minutes and fraction absolutely all that
or dropped aud this statement has been gravpy reit-
eaed 10 the face Of the letter Of the president Of the
BOARD expressly controverng IL see Report Naval Com
mittee, p 2qb
Tp reOr this bold and broad assertion have hut to
ss tie character of the examination In the o Lieut.
BARTLETT which IN been much dwelt upon here The
board in this took up examined and discussed Il
On four different days
Mr. MASON viii the senator state where he gets that
Information as to the action Of the board in reference
Mr.. MALLORY. inquired for my own satisfaction of
member Of the board and he looked his record and
Mr. MASON The senator got II, lhrn. from cDe mem
ber Of the board. Did that member Of the board keen
record I? F -
NJ. MALLORY believe he kept private record.
Mr.. BAYARD. understand that ,br prssiden. az the
board states that Ne kept a reootd for himself
No. MALLORY. When I say record I do not Of
course use tue word IN its legal am speaking in
NE popular sense. Memoranda wore kept
W AASoN. desire information whether one Of the
members Of the board informed tire chairman Of the Com
mlee Naval Affairs that be or any other member Of the
beard Kept any memoranda
Ar AAfARD The president Of the board says 50 in
ms communication
Mr. MALLORY n the senator win look at the report
the president q the board savE
hr MASON. | am asking fcr information whether any
member of tbe board informed the chairman OF the Com.
te oa Naval Affairs that be kept private memoran-
He ln writing, Of The transactions of this board FOR his
information Of cases upon which the board passed
NJ. MALLORY That IL my understanding There
were hrc boards properly speaking and each had sec
.Ary There was secretary to the whole board Of ff-
zen but do not know that he kept record when the
Ehols board was together A number Of them always !
Kept memoranda that they should be Sble to enlivhen
zoe executive Judgment to every distinct case and hs
rfeaaent Of the United States might have known aud
may Know now At any time the reasons for the ar.
uon Of the board in every individual case in detail II
vas IN their power to give him The information which was