Page:The Green Bag (1889–1914), Volume 14.pdf/144

 A Legal View of the Schley Inquiry. If it be correct that the president of the court concurred in what he did not express dissent from, then a comparison of the opinions seems to show that all the members of the court at least agreed in finding that the retrograde movement should not have been made, that the order of 25th May should have been promptly obeyed, that the "Colon," at least, should have been at tacked to the utmost on 31st May, that the reports concerning coaling were inaccurate and misleading, and that Captain Hodgson was treated unfairly; but that Commodore Schley's conduct during the battle of July 3 was self-possessed, and he encouraged in his own person his subordinate officers and men to fight courageously. If the presiding member did not join in these findings, and did not make other find ings as to those points, then the question would arise whether he had obeyed the pre cept, which required findings as to those matters. As to the reports of fact in the Schley case, it is not worth while here to discriminate be tween what the court did and what it might have done concerning each specification; because, with all due respect to the court of inquiry, it is not expected to be very pre cise, provided it does not ignore its orders. The late Chief Justice Field, of Massachu setts, said that, when he was made a judge, one of his friends, after congratulating him, said, " Now, don't take yourself too seri ously." The value of any court of inquiry as a precedent is, not exactly what prin ciples did it establish, but what did it think had been done, what did it think should or should not have been done, and what did it think should or should not be done. Consequently, dissent is far less serious, from a public point of view, than it is in an appellate civil court, where it tends to un settle the existing law, or to invite new law.

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It is interesting, however, to consider the meaning of dissenting opinions wherever they arise, especially upon professional ques tions where training tends towards general respect for certain standards. In this case any opinion which the eminent president of the court believed that he ought to express to the government of the country was cer tain to be expressed. No one can be sup posed to have known better than he after presiding over such difficult deliberations, that he spoke subject at least to disapproval. He cut the cable and entered the straits of dissent with his usual fearlessness, but this time something like a torpedo went off under his flagship. Whatever one's opinion concerning the merits of the controversy, this dissenting opinion must be said to have lacked the pre caution which usually characterizes the ablest and most effective dissenting opinions — that of a full statement of reasons. The final paragraph of the opinion has been already disapproved by the reviewing officer. It in troduced matters excluded in principle, as well as in some respects expressly, at the inquiry. It appears also confused, because it states incidents of rank and command, and the destruction of the Spanish ships, which might, if tried, have been more prop erly inserted in a statement of fact. It also adds a suggestion for credit which might, if relevant, have been more logically inserted in a recommendation, rather than in an opin ion. Such an inartificial finding by such an official personage would be more surprising if we had not been initiated into the mysteries of mind by the dicta which one or another learned judge of the Supreme Court of the United States has occasionally let fall into an opinion, because he thought it would be good for somebody and would not hurt the country. Even if such dicta be true we have to bear in mind the value of the legal com