National Republican., 1885-08-10

smith.
When the government appeals to the
law we have the right to exact of this
court that it will be governed by strict
legal evidence; that no irrelevant evi.
dence shall be considered, and that no
strained construction Of the law shall be
entertained, We want to put this case on
legal grounds. This court has sworn to
put II on legal grounds, and will put il on
legal grounds. have heard il said in
this case, that there are riyalries in differ.
ent classes of army and navy officers; but
th re is no officer Of the army or navy
charged with the consideration of such a
case as this who would be at all in.
fueced by any such feeling. | am
not afraid of that. All | ask is that
the court will exercise its judgment and
conscience under the law, and not con
demn Gen. Smith because il does not
feel in its own mind that II would have
done just rs Gen. Smith has done. There
is no legal ground for any such judgment
as that. The condemnation, if given,
must be some condemnation which the
law expressly declares shall be visited
upon him; and when these specifications
are consulted and finding is TO be made
upon any one of them some law must be
found which in terms mentions and
aiiixes penalty to the act forbidden.
1t IS not sufficient that this court does
not approve what was done.
AN ALLEGED QUESTION OF DISCIPLINE.
We are told told that we are consider.
ing question of discipline. What does
discipline relate to2 It relates to those
duties which are usual in the naval ser.
/ Il
from those of q civil nature. Whatever
discipline is imposed upon an officer,
though he be naval officer in discharge
of civil duties, is declared by rule pre-.
scribed by some law. In active service
there may be things done which are vio-
lations of discipline. An officer may not
conform strictly to an order given to him..
de may not deport himself according to
the usages Of his place in that respect.
But the word discipline has no mean.
ing when applied to transactions
like these. Discipline is simply acting
according to established rules, subjec,ion
to rules, submissiveness to orders. II
we were to be tried for breach of dis.
cipline, or disobedience of an order, is it
not known to every officer of this court
that that order which we disobeyed must
be set out in the specification, and proof
would be limited to the fact whether we
did or did not disobey that order? Is
there, from the beginning to the end Of
this case, any order set out that we dis
obeyedl Is there any rule set out that
we disobeyed? Not at all. They state
that the duty which we disobeyed was to
conduct this bureau in a reputable
manner. What in the world does that
mean? A reputable maunerl Mr.. Wharton
says, 81 will not read it; have cited
it already before this court that, where
anybody is charged with omission
of duty, the particular act which that per.
son has omitted to do must be found to
be required in terms by some law. l
have been generous enough in this case
not to say aud not to argue that that act
must be found in statute. But if 1t be
a matter Of negligence it must be found
in some order Of his superior officer or
some rule of procedure. No act which
has failed to do is prescribed for him
Wto any where within the naval code.
There is no rule requiring him to demand
a delivery of supplies. There is a rule
commanding other officers to do it, but
there is no rule commanding Gen. Smith,
as chief of the bureau, to do it, and no
court can maintain the inquiry whether
he was negligent in that respect or not
until the preliminary of the existence of
a rule requiring him to do it be satisfied.
There IS no rule forbidding him to
enlarge n contract, and by statute | say
it is authorized by implication, and It
is authorized as the result OF the custom
of the bureau. do not suppose there
will be any attempt to introduce any new
rules here, because twas distinctly under.
stood, if there were any rules different
from those that we have cited, they
should be given to us before | began my
argument. The prosecution having
searched with great diligence for them,
and not finding, them | conclude that
none others exist, and that, therefore,
no foundation in law is laid for charge
of negligence or want Of discipline.
THE DITTY Box PURCHASE.
will say but word about the dtty
boxes. The error, if error there be, is
, in the number purchased. If he had
bought $50 dtiy boxes, and paid what he
, had to pay for them, there could have
E been no complaint, because requisi-
ton was made on him for that number.
There was only one place on this earth
,, where he could buy those ditty boxes.
: With respect to advertising in such
, cases as that, / desire to say this: All
the laws Of this country are taken to.
gether. You do not find them all sci
out in one statute. There are many
cases in the law where man, before he
!, can bring a suit, must make demand.
If he does not make the demand he will
be non suited. He cannot go on with
! his suit. But if he shows that the party
d whom he sues told him in advance thai
he would not respond to the demand il
I. made he need not make il. That is upon
a well settled rule of construction tha
, the law never requires useless thing tc
be done. Whenever statute is in oper
, alton which appears by its terms to re-
:, quire certain thing to be done, and that
/, statute is useless in one particular, yor
? !, do not have to conform to the statute il
y that particular, because the rule of law
, all pervading, is that man is not re
: quired to do a useless thing. Why ad
! yertise for ditty boxes? 1t was abso
!, n lutely useless to advertise. That section
J. OF the statute which calls for advertise
J ment is abridged in its operations by tina
v rule of construction TO cases where som,
II good can be done by advertising, wher,
:, u there may be competition. The objec
y and spirit of the statute requiring adver
~ tising is to secure competition. II MAJ
- holds patent under law of this govern
! ment, an exclusive grant of the govern
a'S ment to make ditty boxes, by'yirtue o
. which everybody else is exclude from
y handling that particular article and i
" the government wants that article, how
|. silly 1t would be to say the governliieii Il
must ndynriise for hida hu nihnrn ,uhn