A Legal View of the Schley Inquiry. note at of this article.as it may deem the■ See hands of the theend Department best to accomplish this purpose." An order by the Secretary of the Navy was issued to Admiral George S. Dewey ap pointing him president of a court of inquiry, and naming Rear-Admirals Lewis A. Kimberly and Andrew E. K. Benham as mem bers thereof, and Captain Samuel C. Lemly, the Judge Advocate General, judge advocate, and ordering that such court convene at the Navy Department at Washington at 1 p.m., September 12, 1901, or as soon after as prac ticable, to inquire into the conduct of RearAdmiral Winfield Scott Schley, Commo dore during the recent war with Spain, and in connection with the events thereof. The order was, to inquire thoroughly into all the circumstances bearing upon the subject of the investigation; to have witnesses whose attendance could be secured; to call upon the Navy Department for all documentary evidence in relation thereto on its files, and to report its proceedings and the testimony taken, with a full and detailed statement of all the pertinent facts which it may deem to be established, together with its opinion and recommendation. The order states the report should show conclusions upon points for which it lays down specifications.1 The order says that these specific directions are given, primarily, for the information and guidance of the court, but do not limit or restrict the scope of its inquiry into the "en tire matter," the investigation of which is asked by the officer concerned. Rear-Admiral Schley was said to have been informed of his right to be present either in person or by counsel, during the investiga tion, to cross-examine witnesses and to offer evidence. The court was given leave' to grant at any time "to others interested and entitled thereto, like privileges," The inves tigation ordered was to be in open court. The order stated that this employment on shore duty was required by the public in terests.
137
Soon afterwards, Rear- Admiral Kimberly was relieved, and Rear- Admiral Henry L. Howison was appointed in his place. The first order to the court was modified by the order to hold the court at the Navy Yard in Washington, instead of the Navy Depart ment. On the 27th of July, Rear- Admiral Schley, by letter to the Secretary of the Navy, re quested that Specification 5, which contained the fied word so as "disobedience," to omit the department's should "beexpres modi- . sion of opinion and thus leave the court free to express its own opinion in that matter." On the 1st of August, the Assistant Secre tary of the Navy replied by letter, saying that the precept treated certain matters as established; for instance, the arrival of the Flying Squadron off Cienfuegos and off San tiago, the retrograde movement, westward, the turn of the "Brooklyn," on July 3, 1898, and "the fact that you disobeyed orders as reported by you in your telegram dated Kingston, May 28, 1898, in which you say: 'Much to be regretted; cannot obey orders of the Department.' "2 The letter added that the court was absolutely free to report that he was not wilfully disobedient, or that he was justified, and said that his letter and this reply would be forwarded to the court. The Assistant Secretary of the Navy wrote to Captain Lemly, the Judge Advo cate General, that Mr. Edwin P. Hanna, solicitor in the office of the Judge Advocate General, was associated with and "directed to assist you," and ordering the Judge Advo cate General to communicate this appoint ment to the court, and to request that Mr. Hanna be afforded facilities for the dis charge of his duties.
- This refers to the despatch as received by the Navy
Department after having been put into cipher by the person whose business it was to translate. At the inquiry it appeared that this part of the despatch as found in Commodore Schley's letter-press copy book read as fol lows: " It is also regretted that the Department's orders can not be obeyed, earnestly as we have all striven to that end." Therefore the Judge Advocate in his argu ment relied upon the copy in the Commodore's copy book.
