Page:The Green Bag (1889–1914), Volume 14.pdf/136

 A Legal View of the Schley Inquiry. mains, that a court of inquiry is not strictly a court as a court-martial is a court, or as a civil court is a court. There is no mere formal issue before.it, no one is arraigned there, there is no plea, there is no verdict of guilty or of not guilty, there is no sentence to punishment. " Its proceedings are not a trial, nor is its opinion a judgment."1 Its members are sworn simply to examine and report as ordered. Yet a commander has sometimes acted upon its report as a final ground of punish ment. It was a court of inquiry that ex amined Major Andre, and reported the facts, with its opinion that he ought to be considered as a spy. At the end of its proceedings " he was remanded into cus tody." 2 He was hanged a few days after wards. This was an exception. This court remains a board of a higher sort, rather than a court; consequently its scope may be more comprehensive and its proceedings freer than those of a court for trials, whether in civil or military law. Being of a less technical character, it is more open to considerations of fairness and honor than courts which are legally bound byrules.that may exclude evidence upon that aspect of a matter. Its findings have been said not to be evidence before a court-martial, and to be powerless to influence a court-martial legally or officially.3 There is now a provision concerning admitting its " proceedings." The Supreme Court of the United States has said that a report of a military court of inquiry could not be pleaded in bar to an indictment for murder before a civil court,4 but that weight should be given to its find ing as the expression of the opinion of the military court. Its proceedings are not ' Winthrop's " Military Law," ch. 24. 2 Winthrop. ch. 24. 3 Winthrop, ch. 24. "J. S. v. Clark, 31 Federal Reports, 710 (715).

imperilled by such errors as might affect the legal validity of the record of a courtmartial.5 Even if it does not fully complywith the order appointing it, the very imperfec tions of its report may serve to enable the ap pointing power to amend and improve its own order by a'more specific precept, and thus to acquire more valuable or fuller information than might otherwise have been obtained. Not only can one party to a difficulty apply for a court of inquiry, but two officers have been known to invoke such aid towards arbitration between them.6 But with all its elasticity, it must stick to the matter and to the purpose which it is not only appointed but ordered to report upon." For a departure, it might be cen sured by the authority it is created to serve. Nevertheless, its honest opinion is its own, and its expression of such opinion is free, provided its language and manner are tem perate and proper.8 Although a military man is not at liberty to use the same free dom of speech which other citizens enjoy, and must obey orders as to his language and conduct, the very order creating a court of inquiry, when it commands it to report not only facts but also its opinion, requires its members to speak their minds. Even if such opinion should displease the convening authority, and the court should be ordered to reconsider and requested to modify its opinion, it is doubtful whether in this country any discipline more severe than censure, or some form of criticism, could be lawfully visited upon a court which in good faith should stand to the only opinion it could honorably profess. According to the whole theory of the system, such firmness might be of far greater service to the gov ernment than the most ingenious pretensions. 5 Winthrop, ch. 24. 76 Winthrop, ch. 24.
 * Winthrop, ch. 24.