National Republican., 1885-08-10

much rules of guidance and of usage as
though they we're expressed in ailirma.
tive law, or were adjudicatiOns Of courts.
This principle is sanctioned by the high
est court Of the land. An officer when
he is called TO account for anything he
has done may appeal to what his pre-.
jecessors have done, or to what his sue.
cessors have done. But whether he has
u precedent for his act or not, whether
his action is the first of the kind or not,
there is no law, no adjudication to be
found holding that an officer can be pun
ished for misconstruing the law.
II will be remembered that early in
this controversy we introduced certain
rules and regulations of procedure of the
Navy Department. We asked the chief
clerk, who shows great familiarity with
the business of the department, to pro-
duce any countervaiing rules, il they
existed. We asked Mr.. Lemly, before
entering upon his speech, TO point them
out to us, if there existed, in his opinion,
any rules which in any way modified or
changed the rules which we have brought
to the notice Of the court None have
been cited, so that il seems the rules and
orders which we presented to this court
as operative in directing the con-
duct Of the chief of the bureau OF pro-
visions and clothing stand absolutely nm
challenged.
shall not undertake to go into the
dertake to inquire so far as | can
whether Gen. Smith has violated any
statute under circumstances that make
him responsible; if not, whether he has
failed TO observe any rule which makes
him responsible in this connection;
third, whether he has disregarded any
order given to him.
THE SPECIFICATIONS ANALYZED.
What is the character of the first
specification under the rules, which |
insist cannot be controverted in this
case? 1t is charged that he undertook
to enlarge contract in violation of GER
tain conditions. Hark you, it is not
charged that he had no power to enlarge
the contract, or that it was penal to en-
large it. That is not the philosophy or
suggestion Of the charge at all. 1t was
done without the consent of the head of
the department, is the allegation. 1t was
done without consulting the sureties, is
. another allegation. 1t was done when
not required, when the market was fall
ing. Now, / submit that if this court
finds anything against Gen. Smith, it
must be on the specifications as inter
preted by the government ITSELF and as
this court will legally interpret them.
This assumes that if he had consulted
the head Of the department., and If he
consulted the sureties, and if it had been
required, and if the market had not been
falling, then there was ample power to
enlarge the contract. The proposition
lay down here is that the power to en-
large the contract under the first speci'
ication is not questioned. All that is
questioned is that it was enlarged under
circumstances, not of law, but of fact,
which they say impose some RESPONSE
bility upon him. Is there any. rule
against cnlargiDg u contract without
consulting the head of the department,
or is there any law against it? That is
not claimed. But he did consult the
head of the department. 1t is in evi,
dence here and not conirovcited that
the superior officer of Gen. Smith or
dered him to exercise his discretion. II
them, that evidence, being uncontro'
verted, is to have any weight, it en-
dowed Paymaster General Smith with
full authority to enlarge this contract
fit might be enlarged in the discretion
of the Secretary Of the Navy, because
there is 10 controversy that in every
thing he did he was generally COM
manded to exercise his judgment. Sc
, far as the allegation is concerned, tina,
he did not consult the head Of the de-
partmcnt in respect of this particular
y act, that allegation is in effect disputed
by the testimony which shows that the
Secretary of the Navy instructed him in
advance upon all these matters to exer
else his discretion. There is no palmer
proposition on earth than that when at
agent or an inferior officer is instructed
generally about the discharge of his du
ties, he need not return to his superior
officer to get specific instructions upor
every matter, but do not care whethei
he was instructed TO exercise his discre
ton in terms by the Secretary OF thu
Navy or not, because the law itself com
mands him SO to do. The law place
him in that attitude, subject only to tn,
approval or disapproval of his acts after
ward. But in this case the evidence |
that he was instructed in advance t,
exercise his judgment in regare to thes
matters, and did SO, and his action wa
approved.
Then It ia said that it was done with
out the concurrence of the sureties
, Upon that allegation there is absolutel
no proof. certainly feel safe in say
, ing that the court cannot find from
this evidence that the sureties did no
concur in this enlargement. Mark you
the charge is that it was done withou
the concurrence Of the sureties ON
surety was brought here. He was aske,
,, whether Gen. Smith notified him Of tn
fact. He said he did not. He was no
, asked whether or not he concurred in it
| undertook to cross. examine him an
asked if he did not talk TO Mr.. Brow
about it, and proposed to show that MI
! Brown told him all about it and tha
i he did concur. The prosecution oh
jected and the evidence was excluded
SO that the only thing they asked him wa
a not what Is charged in the specification
! whether he concurred in it or moi
: whether he agreed to 1t or mott but the
/ asked him whether Gen. Smith notiiie
! him or not. The books are full Of case
. to the effect that where man is suret
on bond aud any change is made o
that bond, and It is brought to hi
knowledge and he agrees to it, whethe
Q orally or not, he is bound by it as muc
! as fthe change WAS made in writing an
4 re signed. Therefore ! tried to ask hil
/ whether Brown had not told him abor
: it, and whether he did rot concur; an
(. the gentlemen in their zeal to taste
Q some responsibility upon Gen. Smith ol
!; jected to the question and it was not N
= a swered. So no witness has sworn thi
: the sureties did not concur. The que