A Legal View of the Schley Inquiry.
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tween Key West and Cienfuegos this wit ness (the applicant) is better qualified than any other witness to give reasons. The Judge Advocate offered the report of the "New York" (Admiral Sampson's flag ship), but counsel for the applicant objected in so far as it attempts to bind the applicant to certain facts; for instance, its undertaking to state the position of the "New York" in the battle, because, said Captain Parker, "We have not been permitted to offer any evi dence in respect to that." The Judge Advocate withdrew his offer of the report. Mr. Rayner asked a witness whether he saw signals from the "New York," and gave as his reason for asking it, that it was to show the "conduct" of "anybody." This was probably bearing on the command during the battle, .but upon objection, Mr. Rayner withdrew the question for the present, saying he thought it admissible.
task unnecessarily is that he may have to present both sides of the case to the court, as would happen if the person examined had not competent counsel. Counsel are per mitted, but the court has discretion as to whether, and how far, they shall be permitted to appear and to speak. In the case of General Howard: At the beginning of those proceedings General Howard personally asked the court to permit him to have counsel to address the court. General Sherman replied, "I think it would be advisable for yourself to do that." But later counsel were permitted to examine and cross-examine and argue. In the subsequent case of the Proteus court of inquiry1 Lieutenant Garlington asked leave for his counsel, Mr. Kent, to speak, and Mr. Kent in his argument ex pressed to the court "my grateful acknowl edgments for the courtesy which has ex fore tended youtoinme behalf the of privilege Lieutenant of appearing Garlington." be-
THE
It is also important to remember here, what is too often forgotten elsewhere in criticisms of trials by Attorneys General, where they are. accused of not remaining per manently "judicial," that the Judge Advo cate's duty of impartiality is limited accord ing to circumstances. If he has to present both sides of a case because the accused or the applicant is unable to present his case or has not competent counsel, then his con troversial powers are subject to his judi cial function, to the largest extent com patible with a forcible presentation of facts necessary for the government to possess if against the accused or the applicant. But when the accused or the applicant has able counsel, the Judge Advocate may even need assistants properly to main tain the position with which the position of the accused or the applicant must be compared, and perhaps attacked. In such
COMPLEN TASK OF JUDGE ADVOCATE.
THE
, If in order to understand the conduct of Commodore Schley it had appeared neces sary to go so far into an examination of acts of Rear-Admiral Sampson as to affect his interests, the court probably would not merely have admitted him as a party, but might, of its own motion have notified him that it had become necessary that he should become a party. It is essential, however, not merely to know the power of the court in principle, but also to appreciate the practical task of the Judge Advocate in preparing and con ducting the inquiry. It is not one of his arduous duties to become a historian of a war. He is to examine the conduct of the person about whom the court is appointed to report, and incidentally he may be re quired by the court to extend such examina tion if, as above stated, it is deemed neces sary. But one reason for not extending his
1 The Proteus court of inquiry on the Greely Relief Expedition of 1883.
