A Legal View of the Schley Inquiry. were appointed by the Secretary of the Navy, upon the application of Rear Admiral Schley, to inquire into the " entire matter"; the order appointing them anticipated, by its well-chosen terms, the very emergency which arose when Admiral Sampson's coun sel appeared at the bar and requested leave to represent his eminent client in a matter bound directly and indirectly to affect his present interests and his future reputation, as well as the present interests and future reputation of the distinguished applicant, whose request for an inquiry had been granted, and whose counsel urged the court to admit the very subjects upon which Ad miral Sampson's counsel appeared ready to meet them. Even the Judge Advocate, whose cease less cares as Judge Advocate General of the Navy may be supposed to prevent his de siring to spend more time and extra labor than are necessary in such hearings, de clared substantially that if the court was willing he was ready to go into the matters upon which the counsel for both officers urged the court to hear them. But at this parting of the ways, it is said that the court took a course which was neither military when compared with leading precedents of military courts of inquiry, nor legal when judged by the wise comprehensiveness of civil courts of equity. It is said that it was a military error to exclude evidence of command, even if all three judges agreed as to who was in com mand; and if they disagreed as to the his torical fact, then it is said that it was a still graver error to refuse to hear evidence upon it. Their exclusion of the question of who was in command at the battle of Santiago has been complained of as not military, be cause in a military inquiry concerning the conduct of an officer in battle, the fact of
117
his rank may determine the fact of what his "conduct " was and should have been, and may indicate his responsibility and decide the opinion of the court as to the military meaning of his conduct. The function of a military court of inquiry, it may be said, includes great freedom, and a responsibility as great as that freedom. Its inquiry and report may be secret or open, as the reviewing power may choose. When it is secret it is because the government thinks it best, either for the government or for the nation, to have it secret. When it is open, it is because the government thinks it best, for the government or for the nation, to have it open. In either case, the govern ment and the nation need that the inquiry be thorough, and especially when it is open does the public interest require that the in quiry should not be or seem to be arbitra rily confined within limits which are more adapted to the comfort of the judges than to the satisfaction of the people. Neither in England nor here does any class wholly govern itself or others. The army and navy are fed, clothed, armed, and equipped for service, by the masters whom they choose to serve. The people for whom the sessions of the court were kept open could not, it is said, but feel grave when the Admiral, whose last strength was almost spent in patriotic services which at least equalled, in professional esti mation, the deeds of even the most eminent member of the court, was refused a hearing because the court, which had power to hear him, did not regard him as a "party." Admiral Sampson was at Santiago, and he thought he was a party. Rear-Admiral Schley was at Santiago, and he thought Admiral Sampson was a party. But this Court of Inquiry, with powers for a world wide examination, decided at the very out set that it knew who was and who was not a
