free to report upon such evidence as was incidentally admitted affecting the question of command, although that question was not tried and evidence was excluded which was offered for the purpose of discovering whether that question was to be tried or not. Indeed almost any theory compatible with the intelligence and character of the president of the court may be entertained after such a voluntary contribution to the unex pected curiosities of military law. But it was within the right of any member of the court to express in his minority report to the convening authority, his opinion that the evidence, or a party, had been excluded when the admission of such evidence, or of such party, had been necessary to thorough obedience in the inquiry ordered. Such minority report, if rendered, would regularly receive due consideration by the convening authority which has power to recommit the case to the court if it desires further exami nation. Then, if that were the course taken by the convening authority, the court would act with instructions as to its subsequent duty. Yet the course actually taken by such a responsible officer was of course believed by him to be required by his duty under the precept. A simple explanation would be that he regarded the question of command as a necessary one, in an inquiry into the conduct of an officer of such high rank in a battle; and that he was convinced by the evidence that was admitted as to how that question should be answered, and that the mere fact that Admiral Sampson had re quested to be heard and had not been per mitted to take part in the proceedings was sufficiently disposed of by the fact that the court did not regard him as a party, and that the ruling that he was not a party was consistent with the evidence which convinced the presiding member of the court that the
applicant was in command. But such a beg ging of the question would be too simple to be competent after the evidence had been excluded. The Judge Advocate and his Assistant, Mr. Hanna, challenged a debate upon the point whether the question of com mand should be tried, but the challenge was not accepted by the applicant's counsel, al though such a debate seemed to be immi nent According throughout to the military inquiry. law, it was not necessary for the government to grant a court of inquiry to Admiral Schley; and military law did not require such court, when granted, to enter into any hearing concerning any claim which Admiral Sampson wished to make, unless the court regarded such hearing needed in its examination as to Admiral Schley under the precept. It was a matter of course that in an examination of military movements something would appear that indicated that somebody was in com mand. What did appear evidently con vinced the presiding member of the court that during the battle Admiral Schley was the senior officer and, as such, in command. It does not appear what the other members of the court thought on that point. Their silence suggests that they thought that the inquiryundej the preceptcould be obeyed with more practical sense without regard even to such a fundamental matter, especially since the precept, while giving jurisdiction wide enough to cover it, did not specify it. Such a view involves, of course, the construction that the words " the entire matter" do not necessarily involve the command. It is a mark not only of executive courtesy, but of legal discrimination in the decision of the Secretary of the Navy that, although he denies the " propriety" of making a finding and expressing an opinion on questions on which evidence was excluded, he does not deny the authority of the court, or of any
