A Legal View of the Schley Inquiry. in order to bring out, as clearly and distinctly as may be, the contrast between civil and military courts. A civil court acts because some person claims a right and asks the court to hear and decide upon that claim, and because, if the person proves such right, the court is bound to decide in his favor. A civil court has to consider the rights of per sons as against other persons. But a mili tary court acts because a superior officer orders it to act as he directs, and concerning a person or persons or affairs which he points out. When the superior gives dis cretion to the court, expressly or by impli cation, it is for the purpose of obeying such order. It is not for the purpose of deciding rights between citizens as a civil court de cides them. A citizen may demand to be heard by a civil court, and the civil court exists con tinuously from day to day, and from genera tion to generation, in order that disputes be tween citizens may be heard when hearings are demanded. If a civil court refuse a hear ing in a case where it has jurisdiction, the citizen may by writ of mandamus, or a writ of prohibition, or by some other process known as extraordinary, obtain from some superior court or supreme court an order that he shall be heard. But a naval officer has to ask for a military court to be ap pointed to consider his complaint, and the superior whom he asks may grant or refuse his request acccording to the superior's judgment as to what is best for the service of the army or navy, as distinguished from what is best for that particular servant, be he high or low, in the army or navy. Then if a court is granted, for instance a court of inquiry, and the court finds in the course of its examination that some person in addition to the person whom it is ordered to inquire about is an interested party, the court may of its own motion call such person before it, and advise him that he is an interested party, and inform him that he has a right to be present and to offer evidence and to cross-
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examine witnesses if he so desires.1 But it does not follow that such a court has the duty of hearing any person, no matter how high in rank as an officer he may be, who thinks himself an interested party. Nor can an agreement between the person under in quiry and another make it necessary for the court to grant a hearing to that other per son. It is a familiar rule in civil courts that an agreement between parties cannot give juris diction. Still less can any agreement be tween a party and a would-be party, or even between parties, compel a military court to recognize as a party one whom it does not regard as interested, or to hear evidence upon a subject which it does not regard as needed to "throw light on the matter," as General Sherman used to say. His characteristic language in stating the rulings of the court of inquiry concerning General Howard, of which General Sherman was president, vividly presents this contrast between the rules and principles that limit or extend the legal justice of a civil court, always open, and the customs and authority that give despatch to the business of a mili tary court open for one case. For instance, in the case of General Howard, the Judge Advocate wished to put in some testimony in rebuttal, and said that the government had the burden of proving the affirmative. General Sherman ruled as follows: "If the object of the affirmative be to es tablish the truth, there can be no objection to the witnesses; but if it be to convict some body, then there may be some confusion. Now go on to the next point."2 Afterwards General Howard's counsel ob jected to cross-examining a witness on cer tain charges unless it were expressly noted on the record that the Judge Advocate had finished his examination upon them. Gen1 " Forms of Procedure." Laucheimer under Lemly1896. 2 Court of Inquiry under Act of Congress of February 13, 1874, by Special Orders No. 35, War Department, Adjutant General's Office, of February 16, 1874, in case of Brigadier-General Oliver O. Howard, U. S. A.
