National Republican., 1885-08-10

/ Dedience oil any order OF his superior
officers; and yet, this court, com.
posed Of high off 'ers of the navy
are solemnly asked to tarnish the name
aud honor Of this man and innict some
penalty upon him, II, looking back upon
his acts, they do not approve them. 1t
is solemnly insisted here by the repre-
sentatives of the government that Gen.
Smith shall be degraded before the coun
try, though no law or rule or order has
been violated. A judgment of that kind
reflects higher degree of cruelty, and
is a graver infraction Of law, than any.
thing than is charged against the &c.
cused.
Mr.. Cooley has well established the
boundaries Of liability in law. Every
one who has studied the subject knows
that there ore criminal liabilities, and
there are liabilities of lessor grade
called tortp, and there are civil liabilities.
Each division of legal liability rests upon
we'll ascertained and long-setlled founda.
tions. When mans guilt Is found, in
order TO be justified, must rest upon
these foundations. Here we are going
through a criminal inquiry, and therefore
to justify conviction and punishment in
this case that result must be reached
under and in obedience to the rules and
laws of criminal procedure. In case OF
wrong or alleged wrong there can be no
Judgment against man on acts which
the law permits to be done. To say that
the law permits thing to be done, and
at the same time condemns the doing of
it, is to bring the law into degradation
and absurdity. read from Cooley on
"Torts," page 3:
An act or omission may be wrong in morals
or II may bo wrong in law. 1t is scarcely
necessary to say that the two things are not in
terchangeablc. No government has under
found to be wrongly judged by tho standard of
strict morality. nor y u likely that any COY,
eminent ever will. OF the reasons that would
if made, IL will be sufficient to have mentioned
the following. 1t follows that there must
of necessity be a legal standard Of right and
and one that the people in general will consent
under penalties to conform to; Nor Is y pos;
sible that this standard should BIO established
otherwise than by positive human law, for
human law can alone constitute the authorita-
tive expression of assent which would bo evil
dence Of agreement upon 1t. But whenever the
| law Of th land undertakes to declare and pro-
tect rights and establish q standard Of conduct.
the acts or omissions ofwhch disturb or impede
the enjoyment OF such rights, they may be
treated as legal wrongs or torts, but no others
can be.
THE APPROVAL OF THE COURT NOT NEc-
EssARY.
1t is immaterial in law whether this
court of intelligent men approve what
was done by Gen. Smith or not. That
is not the inquiry. So far as believe it
dnes not matter whether this tribunal
would, 10 the fullest extent, indorse
what was done by Gen. Smi,h or not.
The court is required by the obligation
Of its oath, by the preservation of its
honor, before ii can visit penalties upon
Gen. Smith, to, find that he has violated
some law, not that be has violated the
opinion and judgment aud sense of pro-
prieiy of this court.
If this be so, let us then see Wat law
= is violated, if any; what law id s8'arged
q to have been violated, if any? VT does
: not follow if an officer has not construed
a a law as this court would construe it that
:, that constitutes violation of it. Men
u must construe law in the administration
!; of public business. The Supreme Court
IS of the nation reverses their opinions
IS upon statutes and their constructions o.
,. them given heretofore. SO that ifa law
!. which directs human action has received
!, construction by an officer charged with
II its execution different from what this
'e court would construe il to mean, there
= can be no legal liability falling upon him
,r in consequence.
II is said that Gen. Smith enlarged {
i" contract. Suppose your honors believe
N that he had no legal power to enlarge {
l. contract. Does that authorize you t
At find him guilty. Not at all. The au
!. thorities which read the other day de
:. clare that where an officer is charged
with the execution Of law, the yer.
'e fact OF. being so charged imposes upol
0, him the right and duty to interpret the
N law. But suppose he does no
interpret it Alright. Suppose con
9 cede that Gen. Smith did not interpret !
= Alright, which do not. insist that he
% has interpreted it according to the inter
IT probation that the courts have given it
,e | am assuming for the sake of argumen
n. the strongest position the government
"a can take. Suppose he was wrong in his
70 construction Of the law. What Of it
ie There is no guilt in that fact. Here il
IN a case in Peters, where two Secretarie
u. Of the Navy differed concerning the con
structon of q statute. The statute a.
q. construed by one secretary authorized
ed the employment ofcertain clerical force
y and that clerical force was employed
m A succeeding secretary construed the las
If the otEer way, not to authorize the EN-
ry ployment of that force. The party VIII,
was employed brought suit for the ser
c. vices which he had performed unde
8. that law, and the Supreme Court sal
"a that one secretary had just as mucl
~. right to construe the law as another, an
" inasmuch as the service was performed
a under the construction of the law pre-
c. vailing at the time Of the performanc
g. of the service, it did not matter how tn
!. law ought TO be construed, or whethe
the succeeding secretary construed
u otherwise. They held that the man wa
he entitled to his pay. read from pag
of ii off Peters
ed A practical know ledge of the action of an
/, one o tho great departments Of the govern
." mont must convince every person that %
of head of Il department in the distribution ofh
y. duties and responsibilities Is often compelln
w. TO exercise his discretion, and he Is limite
no in the exercise Of his power BY the law; but
does not follow tina. he must show \ statutor!
he provision for everything ho does. No govern
- ment could be administered on such prime
CT pies. Any attempt to regulate by law th
be minute movement OF every part OF the c0l
rIr plicated machinery of the government woul
OIL oyince a most unpardonablo ignorance on III
lie subject. While the great outlines Of its NOV,
Wv ments may be marked out, and Limitation
no imposed on tho exercise of its powers, thei
10. are numberless things which may be don
~ that can neither be anticipated nor define
10 and which are essential to tho proper actio
Gu have been established in every department.