National Republican., 1885-08-10

is the American doctrine that the court
may change its opinion, or its order, or
its judgment in any feature or in any
particular Of the case n any time before
II adjourns.
Judge Advocate. To save time about
IL | will say that admit that fundamen.
tai objection can be taken at any time of
the proceeding, as a general rule. What
] meant and what said was that unless
the court asked for argument upon this
question it was settled, and | did not
think 1t was in order to argue it.
Mr.. Chandler. There is no such rule
as that. The rule is without quallica.
ton. The court without argument, on
its own motion, is absolutely free to do
as 1t pleases with its orders and its rul.
ings. II is its duty, and any court know.
ing that IL is in error will not adhere to the
error simply because there has been no
new argument on the subject
Mr.. Maury. admit that.
Mr.. Chandler. Then there is no occa.
sion to interrupt me. That being ad.
mitted, the doctrine is as have said. If
II is not admitted ask the court to con.
suit the authority which have mentioned,
which declares it without exception.
Now, without dealing with these spc.
cihc specifications, as have not time,
after the prosecution has conceded that
there was no crime described in this
case, after failing to find that there was
any rule Of the department violated by
the accused, after failing to show that any
order Of the Secretary of the Navy had
been disregarded by him, what ground do
they place this case on? On an alleged
abuse of discretion. II was solemnly
argued here for an hour that an officer
possessed with discretion, with no limit
of law binding his discretion, can, for acts
within that limit, be adiudged guilty for
what he adjudged it proper to do. /
have only to soy that there is no support
in law for that doctrine. There cannot
be On authority cited to sustain it and
there has not been up 10 this hour. Mr..
Wharton, who is the received American
author upon criminal law, says, section
$3.50:
If tho duty of an officer is one merely dscre-
tionary, no indictment lies for its non perform
anco.
That is a declaration made without
qualification and without argument. So
plain and palpable is the principle, so
frequently asserted and generally
accepted, that ii is merely stated. put
the law as declared by the best of authors
against the position taken by the govern.
ment. Furthermore / will read from
High, on Extraordinary Remedies, part of
section 40:
Wherever public officers are vested with
powers Of a discretionary nature as to the por-
iormance Of any official duty. or in reaching u
given result Of official action. they are required
70 exercise any degree of judgment or skill.
While 1t is proper by mandamus to SGT them in
motion and require their action upon the mat
ters Officially entrusted TO their Judgment and
discretion, the. court will, in no manner, in
terlere with the exercise Of their Judgment.
nor nttempt by mandamus to control or change
the Judgment to BIO given. Indeed, so jealous
arc the courts Of encroaching in any manner
upon tho discretionary power of public Off
| GERS. that II any reasonable doubt exists rs TO
| the question Of discretion or want of discre-
tion. they will hesitate to Interfere, preferring
favor of tho officer.
Now court in no form of its juris-
diction, civil or criminal, will revise the
discretion of public officer; and 1
undertake to assert that the jurisprudence
Of this country does not furnish an au-
lucrative case where it was ever justified.
The government puts Gen. Smith respon-
sibility within the limits of discretion and
solemnly argues to this court that Gen.
Smith can be held for an alleged abuse
Of discretion. The authorities are uni.
form against this position and to the
effect that this court cannot inquire into
that subject. This principle takes away
from the government the last pretext oil
any kind which it has to justify any pun.
ishment Of the accused.
RATIFICATION.
But there is another proposition which
is as deep as the law itself. In all public
matters where an officer acts in a subor.
diuate capacity, if his act be known tc
his superior and no dissent given, that
in law, is an approval, an affirmative
approval Of that act. That is so decided
in the cases that cited here the other
day, which ought to be in the record, but
which cannot find in the record. One
is celebrated English authority tC
which called the attention ofyour honor;
early in the case, where an officer was
sued for taking property under circum
stances where he had no right to take it
but he reported it to the secretary o
war and the secretary of war approved
the taking, and the court said that tina
was equivalent to his having origina
primary authority to take the property
1t swallowed up the act of the subordi
nate officer who took it without authority
1t operated in law as previous authority
and he was exonerated and the case wa
dismissed as soon as that fact appeared
THE FACTS REVIEWED.
Now, what do we have here? Unde
the principle of ratification we have thu
Secretary of the Navy coming and swear
ing, after all there is in this case has beer
unfolded, that he ordered many of th
acts done, and, in his judgment an,
opinion, the accused was careful an,
efficient officer. He swears that he diI
approve of certain things, and did com
mand certain things to be done which ar
here charged against this accused. Fur
ther than that, every ounce Of the pro
visions bought, the purchases Of whicl
are here being considered, has beeI
eaten and digested by the troops Of thi
country. The clothing has been wor
out. The government has actually 60
the value of every penny, every farthin
Of it, and used it. | can conceive Of som
reasonable criticism arising out of tn
fact if the government had been wronged
but when the government has got ever.
barrel Of pork, every barrel Of beef, ever
, yard Of flannel that it bought, and ha
, used it, there can be no liability upo
the officer buying it. 1t is said that tn
butter happened to spoil a year aNe'
{ ward which was purchased for th
| Greedy expedition. There is suppose
, to be some guarantee given on the pal
/ of the paymaster generall that II
' hutter that he buys will be allowe
! to spoil. They have discussed the propc
. siLion here with seriousness, that il
r pound of butter spoils it is the result {
| Al, -