Page:The Green Bag (1889–1914), Volume 14.pdf/137

 106

This freedom of opinion, when the court is ordered to report an opinion, extends to the right of individual members of the court to dissent from the opinion of the majority of the court. And since the object of the ex istence of the court is to inform the superior authority of the situation to be' inquired into, to the best of its ability, there may be a majority and a minority report of facts, also, as well as of opinions. A difference of opin ion as to the existence or meaning of cer tain facts might render it necessary for some members of the court to report other facts in addition to those concerning the exist ence of which all might agree. To withhold dissent from a finding of fact or the expres sion of an opinion, when even one member of the court could not but entertain such dissent, would not be according to the order to report; and to forbear from adding what he should regard as an essential finding of fact, or as an opinion necessarily required by facts and needed by the government, provided it be within the government's pre cept, would be to shirk the very duty the precept requires him to fulfil. Accord ingly authorities upon military law so hold.1 Of course to report extraneous facts or to express irrelevant opinions would be a trans gression, and might subject the court or individual member to censure. But, never theless, either the court or its individual members are at liberty, in the course of reports, to add to what is strictly necessary of fact or opinion further remarks upon matters which, in the judgment of the court or of a dissenting member, are legitimately within the subject and purpose of the in quiry. To draw the line legitimately in professional investigations requires profes sional knowledge and judgment. 1 Hough's "Precedents in Military Law," ch. 17; Winthrop's " Military Law," ch. 24.

Neither the court nor its individual mem bers are free to avoid dissent by ignoring the precept and substituting a unanimous eva sion for an obedient although divided report. No matter how strongly class spirit, whether of rank or of the general service, may cause every member of a court of inquiry to try to avoid strict compliance with the order creat ing it, it is the creature of such order, and no professional knowledge or united judgment can relieve it from obedience. A striking instance is found in the early days of the Duke of Wellington, when, as Sir Arthur Wellesley, he was in command of the English army in Portugal in 1808. He had made his plans and was engaging in the battle of Vimiera, against the French army, when he was suddenly outranked by the arrival of Sir Harry Burrard. Sir Harry Burrard, out of consideration for Sir Arthur Wellesley, as well as for the desired victory of the English army, refrained from interfer ing with the control of the battle, and per mitted Sir Arthur Wellesley to command throughout the battle and to win the victory of Vimiera. Afterwards, Sir Hew Dalrymple arrived and outranked them both, and al though the energy of the future Duke of Wellington would probably have pushed him on to press the advantage of his superiority and his success against the defeated Junot, an armistice was agreed on, which was approved by five generals of the English army, an illus tration, perhaps, of the saying of Napoleon that a council of war never fights. The de pletion of energy indicated by the armistice was followed naturally by the celebrated convention of Cintra, a treaty denounced in England, because it permitted the French to retire with many of the honors of war. The English nation was said to be aggrieved by such armistice and convention, and seven generals were ordered to serve as a court of inquiry, as the order read, to inquire " into