cases, the Judge Advocate's judicial powers, after the preliminary preparation has had the benefit of his best and fairest judgment, are hardly required to be exercised, excepting when the court asks advice. He is compara tively free to act as an advocate as against the counsel of the accused or the applicant, because thus only could there be examina tion and cross-examination worthy of the attention of any competent court. In an important case it is better for both truth and justice, as well as law, that the evi dence for each side should be presented under the guidance of clear-minded and skilful counsel, and that the arguments should have the precision and power which make advocacy useful before judges who are thus informed, and warned, also, against extremes in their own minds, before bring ing their minds to a decision. Such was the situation in this case of Commodore Schley, and, therefore, it may be studied by lawyers, not as a criminal case between the government and an accused person, but as a controversy to which the applicant had in vited the Navy Department, and in which the applicant, by able counsel, required the Judge Advocate to act as an advocate in order that the court might obey the order of the Department to go into "the entire matter." Yet such advocacy by the Judge Advo cate remains, nevertheless, a part of the court's own action "adopted for con venience" as General Sherman pointed out. It preserves the responsibility of a prosecuting officer before a grand jury to advise it, and before a petit jury to con vince it. It is a complicated peculiarity of the position of Judge Advocate that he combines in his official function so many powers with so many conflicting duties. The reason is that a military court is intended to serve as nearly as possible in place of the mind of the commander-in-chief himself, who, if he had time to do everything, would examine doubtful or disputed cases, with
such methods and intelligence as the infor mation and skill of the several professions might furnish him with. He would some times use, and often abandon, formal meth ods according to his sense. He is not bound by the rules of exclusion which control evi dence in civil courts or by rights of parties necessary in courts of equity. The methods taken by the President of the United States to form his opinion on the appeal as de scribed in his memorandum on the case illus trate this military practice.
BIAS INEVITABLE IN AN EXAMINA TION BY COUNSEL ON OPPO SITE SIDES.1 Parties are permitted to have counsel in courts of inquiry, and competent counsel know by experience that it is impracticable to adopt any but a controversial method where two opposite theories are to be sub mitted, from the start, to judges by oppos ing parties and witnesses, at public hearings of which a complete record is to be made and preserved. Yet even some of the ad vocates in this case occasionally yielded to the influence of the ideal which haunts trust ful minds, that a fight can or should be car ried on disinterestedly—at least by the other side. The Judge Advocate complained of "interruptions," until Mr. Rayner reminded him that "objections" was the word to des cribe his suggestions. Then Captain Parker in his argument seemed to complain that the specifica tions of the precept were "charges" against the applicant, as if the applicant had not 1 Something far lower than mere bias is recorded of naval writers of an earlier time by Colonel Roosevelt, President of the United States, in his chapter on " The War with the United States, 1812-15," in the sixth volume of " The Royal Navy " by Wm. Laird Clowes, assisted by Sir Clements Markham, Captain A. T. Mahan, Mr. H. W. Wilson, Col. Theodore Roosevelt, President of the United States, E. Fraser and others, where he says, "One of the tricks of the naval writers of the period, on both sides, was to compute the tonnage differently for friendly and foreign ships, thus making out the most gratify'ng disparity in size for the benefit of national vanity " (p. 25).
