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competent officer of the army or of the navy must be able to make his commands obeyed. This is even more fully the case in the United States than in older countries; because here an official superior must sooner or later prove his personal worth, if he would con trol his subordinates as he should. It is startling, not only to one who is fond of ease and to one who is used to shrugging his shoulders at counsels of perfection, but even to one who is accustomed to legal standards of reasonable performance, to learn that in the army and the navy one must " do his utmost" against the enemy, and whatever he omits of that is at his peril. In military law, as at common law, these standards are external.1 Yet such a stan dard cannot be enforced with the permanent success that reason demands unless the persons in chief authority are thoroughly informed even to the extent of minute details. Critical events happen when many a man of ordinarily good sense is so absorbed by action in one direction, or 1 Compare the Judge Advocate's argument, page 1819 of the Record, where he says, " This was not an error of judgment; it was an error of conduct," with Mahan's "Types of Naval Officers," Hawke, p. 94, and with Holmes's "Common Law," pp. 107-128. Captain Mahan's recent writings concerning distinctions between "errors of judgment" and "errors of conduct" have been criticised by Mr. Park' Benj amin in an article en titled " A Casuistry in Legal Ethics " in The Indepen dent for December 26, 1901. Captain Mahan's views perhaps are not intended to be expressed with the ful ness and precision of legal terms, but his words seem to be in accordance with the legal doctrine that when a recognized standard of conduct is established, then judg ment is either irrelevant or, at least, is not to control the question of the liability of the person responsible for the conduct. The difficulties of recognizing and establishing a standard of conduct and the difficulties of applying it are pointed out in Holmes's " Common Law" above re ferred to. To say that in ordinary life the standard of negligence, for instance, is external, means that one who is accused of negligence must be judged by what is to be taken as the conduct of the average prudent man. This is not what the accuser or the accused thinks or does, nor is it what the judge or jury as such may think or do. It is what the average prudent man is to be supposed to do. As experience teaches juries and judges what the average prudent man is — for he exists only as a doc trine — the lav,- is enriched by such teaching being taken as their guide in determining what is negligent in a de fendant or plaintiff and what is not. When the plaintiff or defendant in his own judgment has practised due care

anxiety in another, that his head is lost to all but his own immediate task or burden. Hence it is difficult to learn all the control ling facts of most important movements, even from responsible experts who were on the very istrative spot.department Whereforeneeds the head a ready of an adm means inof trustworthy search, not by spies as against an enemy of the country, but such as broth ers in arms can afford concerning one whose training is their life, whose honor is their glory, and whose shame would be their sor row. Such inquirers are worthy of confi dence when they are wisely chosen, and are subject to be fearlessly challenged by those whose conduct may be in question. In the armies and navies of the United States and of England, the court of inquiry has been long held in honor, and has served those human needs of knowing all and of learning whether all should be pardoned or not. In this country the system for such a court is now more highly developed in de tail than it used to be; but the principle rehe is often surprised to find that he has been negligent according to that doctrine which is external to him as well as to the other party and to the judge and jury. The surprise is frequently shared by all of them because of some peculiar circumstances which have not before been considered by them under the test of what the imaginary legal average pnident man would do if he were in the place of one or the other party. To apply this to military law would be to say that the conduct of an officer in a campaign is to be tested not by his own judgment of his duty but by what the average brave and competent officer of his rank, station and com mand is to be assumed to do as " his utmost." Captain Mahan's histories show that this standard changes with the character of nations. If his own appreciation of past standards has developed in view of such practical re sponsibilities as those of the recent war with Spain, his latest opinions become thereby even more interesting whatever differences there may be among his many readers. One of the difficulties of a public discussion is that while some professional critics are applying an ex ternal standard to an officer's conduct, other critics are applying many internal standards to the officer's judg ment. Mr. Benjamin suggests that if the standard is ex ternal " the law of 'his utmost ' is in fact the law of the utmost." See the article entitled "The Naval Law of his Utmost "by Park Benjamin in "The Independent" for January 16, 1902; also compare Mahan's "Types of Naval Officers " with his " Influence of Sea Power upon the French Revolution and Empire " on Admirals Mann and Byng, and his " Influence of Sea Power upon His tory" on Admirals Byng and Matthews.