Page:The Green Bag (1889–1914), Volume 14.pdf/176

 A Legal View of the Schley Inquiry. find out what issues the court would con sider and to hold the examination down to theAsnecessary usual it was factsheard controlling here and such there issues. that the public would have less confidence in either side because of its presentation by legal advocates. But without such critical assistance the case threatened to involve the history of the modern and of the ancient world. The confidence of the public, while often withheld from the views of advocates on either side of any controversy, is apt to be given quite freely to the judgment of a court informed and warned, if not guided, by such advocacy. That is the honest pur pose as well as the useful result of our legal practice which the regulations of the Navy treat with a respect proved by imitation so far as the exigencies of military service per mit. THE LEGAL RESULTS. The ability with which the inquiry was conducted on both sides was a worthy preparation for the mastery of the case after the appeal by the President of the United States whose learning as a military critic1 and whose experience as a soldier enabled him to rise above the necessary function, even of his great office, and to lay down the military law, besides treating war as a business in deciding upon the facts. The legal results of the inquiry are that Rear-Admiral Schley has been expressly protected against the personal abuse which caused his application for the inquiry; that the court has exercised its discretion by re fusing to hear an Admiral who claimed to be interested, and by excluding even so funda mental a question as command from its opinion in a case where it excluded evidence offered upon the point, although some evi dence concerning command was given inci• See "The Naval War of 1812," by Theodore Roosevelt, published in 1882 and 1900; also his chapter on that war in " The Royal Navy " above referred to.

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dentally; that the propriety of dissent upon issues tried has been respected by both the Secretary of the Navy and the President of the United States; that the power of any member of a court of inquiry to express views even without strict propriety if within the precept, although not approved, has not been disputed by the Secretary of the Navy, and has been respectfully recognized by the President of the United States; that the ap peal from an inquiry in open session has resulted in a private inquiry by the Comman der-in-Chief, who admitted and excluded witnesses and advisers as he chose: that he has examined on appeal the ques tion of command and credit which the dissenting member of the court of inquiry raised by an inartificial finding in his separate opinion instead of by a recom mendation for further inquiry; and that the President, as Commander-in-Chief, has ren dered a decision upon the whole case exclud ing and including details at discretion as he deemed best, and has thus exemplified in a striking manner the difference between the powers and the methods of civil and of mili tary judges.2 old soldiers and sailors may remember in their own ex perience, in the rush of the Civil War, instances like the following: In 1864, a General Court-Martial, of which Major Henry P. Bowditch of the Fifth Massachusetts Cavalry was president, tried an officer upon a charge made by his superior officer. The court found the ac cused guilty, but also found that his conduct was not criminal. Hence the court added that "The court . . . do therefore acquit him." The court explained these find ings by stating the conduct of the officer who had made the accusation which the court characterized " as conduct unbecoming an officer and a gentleman." General Orders, No. 91, Headquarters Department of Washington, 22nd Army Corps, September 29, 1864. This is said to have been read aloud to the regiment to which the ac cuser and accused belonged, and to have been approved by the general in command. Of the freedom of courts of inquiry Winthrop says : "Some of the most conspicuous instances . . . have been cases in which a . . . court-martial was . . . barred by the . . . statutory period, and a court of in quiry remained the only means by which the facts could be satisfactorily investigated, or the person vindicated or the reverse. ... In the cases of General Dyer and General Howard the charges and transactions dated back beyond the period of the statutory limitation." (Ch. 24.)
 * This is not a discussion of courts-martial, but some