Page:The Green Bag (1889–1914), Volume 14.pdf/162

 A Legal View of the Schley Inquiry. vessel was in the greatest danger in the bat tle. The court admitted the question1 as to danger, although the applicant's counsel ar gued that it called for opinion. Mr. Solici tor Hanna ingeniously argued that such ad mission was a necessary exception to the rule as to opinion. Notwithstanding the responsibility of the Judge Advocate to advise the court when there was dispute as to methods, he found the same practical needs that drive even At torneys General to questions leading in sub stance, although wrapped in their formal alternative. For instance:— "Confining yourself to facts, was his (the applicant's) manner nervous or not?" Upon objection, the president said, "That is a proper question;" but the court excluded a question as to whether the applicant was afraid to take responsibility. The general but not constant course taken by the court, in admitting or excluding questions calling for the opinions of a wit ness on the stand, seemed to incline to the exclusion of questions which tended to put too great a strain on the conscience of a witness in view of his possible partisanship, subtle as it might be; or which led too di rectly to categorical answers as to con trolling issues concerning the conduct of the applicant, and to the exclusion also of questions which invited a witness, of a pos sibly too swift temperament, to express an opinion when it appeared that he had not the facts upon which to form it. For in stance: The court excluded the opinion of a wit ness as to whether, from observation, a vessel could have made greater speed, 1 The importance of this ruling upon a single question is shown by the words of the President of the United States in his memorandum upon the appeal where he quotes the words of the court "dangerous proximity " to the Spanish vessels, and says: " It was not in my judg ment as great as the danger to which the Texas was ex posed by the turn as actually made." This is according to the answer of the witness under the said ruling. If this ruling is according to the rule laid down by Benet (see note below) it is probably near the line of questions which should be excluded, unless it is an exception. The line does not seem to be very clear.

since it was not shown that he knew her sea speed, and was not on board of her. But questions calling for opinions which seemed to be necessary to inform the court completely2 of the facts in evidence were ad mitted, with the occasional exception of in quiries pressing for criticisms of officers superior in rank to the witness. Many questions which were asked were upon objection, withdrawn; for instance, as to "anticipating difficulties", and as to the "purpose" of a memorandum. Argumenta tive questions, leading in form and substance, were asked by the government. For in stance: The government asked whether there were shoals or other obstacles to pre vent boats approaching the mouth of the harbor, so as to be within easy range of the "Colon" when she was there. Against ob jection this was admitted.

HEARSAY EVIDENCE. The court seemed to take judicial notice of the regulations of the navy and of squad ron regulations, and after the logs of vessels had been put in by consent, the president cut short testimony concerning their contents by saying, there is no need of asking the wit ness, "because the log-books are now in evi dence. This somewhat wholesale treatment of log books reminds one of the opposite view stated in testimony in the court-martial of Admiral Keppel by Captain Alexander Hood of the English ship "The Robust, about his own log-book: "I do not think, God knows, that log-books which are kept in the manner that ship log-books are, ought to be impli citly taken as evidence. They serve to assist the memory."3 2 Benet lays down the rule that every question is ad missible of a military man, when founded on local knowl edge or circumstances not within the reach of all the members of the court; for instance opinion as to the ex act execution of a certain plan of operations. But a question merely of military science is for the court to try on the facts. See Benet's Military Law. 3 Court-Martial of lion. Admiral Augustus Keppel, as to his conduct against the French on July 27 and 28, 1778.