Evening star. [volume] (Washington, D.C.) 1854-1972, 1889-04-01
MAJOR LYDECKER's DEFENSE.
Argument of His Counsel, Mr.. Swift,
Before the Court Martial To-day.

Argument Of His Counsel, Mr.. Swift,
Before the Court Martial To-day.
To-day's proceedings of the Lydecker court
martial, now nearing an end, were begun
promptly at 10 o'clock. The judge-advocate
read Saturdays record, consisting of Gen.
Duane's testimony. While he read Gov. Bout
well sat in deep thought, apparently, with his
| hands up to his face. Occasionally he reached
over the desk to Major Lydecker and borrowed
from him the copy of the record he was read
ing and made corrections which the judge-ad-
vocate noted. Mr.. Swift spent the interim in
making the final preparations for his speech,
slsncing over the printed specifications and
porting into law books. Major Lydecker fol-
lowed the reading from his copy.
OPENING ARGUMENT FOR THE DEFENSE.
The reading was concluded at 1890, and Mr..
Swift made the opening speech for the defense.
He began by saying that he would feel much
more at home before o jury than before court
martial. He had been warned that there was
different mode Of procedure, and that it would
not do to use the same arguments before a
court-martial that he would before civil court.
But he had found In reading military law
that the rules of procedure are practically
the same; that the accused is presumed inno-
cent until he is proved guilty. 1t is little en-
barrasslng to open before the prosecution had
laid bare its line Of action, and hence it would
be necessary for the defense to presume a line
which it should answer. The 1udge-advocate
had told him that his case and his argument
would be found in the specifications.
REVIEWING THE SPECIFICATIONS.
Mr.. Swift then took the specifications and
requested the court to follow him as he read
them over in order to discover the points at
issue. He sketched the first specification and
stated its gist to be that Major Lydecker was
guilty of such neglect in his personal super
vision OF the work that the contractors were
enabled to evade the contract In other words,
the specification charged the accused with not
taking such steps as would prevent the frauds.
That, explained Mr.. Swift, was his idea of the
meaning Of the specifications. The offense
that he is charged with is
THAT HE DID NOT PREVENT THE FRAUDS.
1t is not alleged that he should have gone
down into the tunnel every day, put that he
did not take sufficient means to insure the hon.
esty of the work. If that were the case Major
Lydecker is guilty, but Mr.. Swift went on, this
neglect would not be a violation of the 62d
article of war, neglect to the prejudice of
good order and discipline"
Mr.. Swift went over the second specification
very briefly, it being practically the same as
the first.
PAYMENT OF THE RETAINED PERCENTAGE TO THE
CONTRACTORS.
Then the third was taken up, it relating to the
payment of $4,000 odd, the retained percent
age, to the'contractors without first satisfying
himself of the condition of the work. Mr..
Swift said that there was no allegation or at
tempt to prove tibet Major Lydecker wasaware
OF the bad work. The allegation was that Major
Lydecker had paid the money out without sat-
lsfying himself that the work was not in accord
ance with the specifications. This was a mis-
10 nfar h. %
the specifications. The pleader meant not that
the accused was not satisfied that the work was
not good, but that he ought to have known.
Ihe process of examination of witnesses in
this course, the speaker remarked was the
most peculiar that he had ever known in law
case. The defense had not attempted to
weaken the testimony which the prosecution
had brought forth, but had rather endeavored
to strengthen the points brought out in the
evidence.
THIS PAYMENT HAD BEEN MADE
with the approval of the chief of engineers and
the Secretary of War, after consultations as to
the propriety Of such an action. Mr.. Swift
quoted law to prove that this payment of
money did not occasion any pecuniary loss to
the United States; by the law of contracts any
money paid on contract on the basis of fraud
may be recovered. He spoke of the testimony
OF witnesses that the tunnel can be repaired for
less than 100000, more than which has been
retained by the government from the contrac-
tors. The latter had also stated that they were
Wiling and ready to repair the bad work. The
only theory by which the accused could be held
guilty of the third specification was that he
was held bound to know, on paying the money,
that the work was good.
TECHNICAL OBJECTIONS TO THE FOURTH AND
FIFTH SPECIFICATIONS.
On taking up the fourth and fifth specifca-
tions, Mr.. Swift announced that he had several
technical objections thereto which he felt it his
duty to bring to the notice of the court. He
claimed that the fourth specification was not
complete. an omission occurring in the state
ment OF the requirements of the contract and
read law to show that an incomplete specifica-
ton in charge will not hold good; also that a
specification must not be argumentative.
In the fourth, he said there is
required solid packing, and Mr. Swift argued
that the entire specification was vitated by the
omission. There is no allegation of neglect of
duty on the part of the subinspectors and this
omission, he claimed, should also throw out the
sPeclhcation which charged neglect because he
DID not take proper precaution to see that the
inspectors did their duty. He said that it was
necessary for the court to decide
JUST WHAT THIS SPECIFICATION MEANS,
which he had himself found to be difficult.
The 9Th he stated as being in the same cate
CORY with the 4th, and then proceeded to dis
sect the 9th, which he said Was a kind of
blanket" without stating or claiming any,
thing new, and open to the same kind of OBJ.
lectlons to which the 4th and 9Th were open.
1t fails. he said, to distinguish between the
contracts, and did not give the requirements.
The only thing that it can mean is that it at
taches kind of responsibility on the part of
the engineer officer that makes him an insurer
of good work.
Major Lydecker," he said, twas the enpi
neer in charge of the tunnel The charge con-
hnes the attention Of the court to his doings
within certain limits. Gen. Duane had testi-
ned that it was absolutely impossible for Major
Lydecker to personally inspect the tunnel, and
that upon the majors request he had ap-
pointed Lieut.. Townsend to take the work of
personal inspections off his hands"
MAJOR LYDECKERs MANY DAILY DUTIES"
Mr.. Swift detailed the many daily duties of
Major Lydecker, the congressional INQUIRIES.
the disbursement Of money, the almost con-
slant disputes with the contractors. The sane
ton OF superior officer goes great WAYS and
if the fact that the defects exist in the tunnel
is sufficient for Major Lydecker's guilt, the
court might try Gen. Duane and the Secretary
of War. This thing is to be viewed from the
standpoint of two years ago, when there was
no reason to believe that the work on the tun-
mel was not going on all right. Lieut. Townsend
reported to the major every day and told him
everything he knew. He had gone down into
the tunnel at least four times a week, and vet
he knew nothing Of the rotten work.
THE POWERS OF coURT-MARr1AL,
continued MIR. Swift are not unlimited It can
not create an offense; it cannot legislate; it