WAR DEPARTMENT 
 
 Military Justice During the War 
 
 A LETTER 
 
 FROM 
 
 TJJE JUDGE ADVOCATE GENERAL OF THE ARMY 
 
 | TO 
 
 THE SECRETARY OF WAR 
 
 IN REPLY TO A REQUEST FOR INFORMATION 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 1919
 
 CONTENTS. 
 
 I.KTTKIt OK THK SECRETARY OK W.VR TO TUK JUDGE ADVOCATK GKNKRAI '.} 
 
 F.KTTKH OK THK JVlKiK AlYOCATK ( i I. \KKAI, TO THK SECRETAKV OK W.Mt 
 
 Prior efforts to revi.se the Articles of War. 
 
 lli'-pousibility in Judi;<> Advocate (ieiM-ralN Oilicn during tli 
 
 pcri< <1. 
 I . Individual cases cited lor criticism 8 
 
 1 . The military police case. 
 
 2. The conscientious objector case. 
 
 3. The death sentences in France. 
 
 II. General principles and methods in military justice 12 
 
 I. Military justice according to law and not according to th>- 
 
 manding oflicer's arbitrary discretion. 
 '2. Military code modern, not archaic. 
 
 3. Preliminary inquiry before filing ch;i 
 
 4. Number of trivial charges filed. 
 
 5. Acquaintance of the court-martial with military law. 
 
 6. Staff judge advocate and trial jndijo advocate difltingulshi-d 
 
 7. Second lieutenants as counsel for defense in capital cases. 
 
 8. Plea of guilty in capital cases. 
 
 9. Commanding general directing m on.-.idi'rai .inn ui" a jud-nm-it 
 
 of acquittal. 
 
 10. Withholding judgment of court-martial publicity till :uVr ac- 
 
 tion by tin- reviewing authority. 
 
 11. Severity of sentences imposed by court-mart ial. 
 1'J. Variability of court-martial 8ent<-Mr<-.. 
 
 l:>. Action of Judge Advocate General's ()llic<- in 'i|uali/,ini; or 
 
 dncing senti-ncw. 
 
 14. Action of Judge Advocate <i-!n'nd, w)i'thT mandatory or 
 recommendatoij 
 
 (a) The question of fact. 
 
 (6) The question of Knrul theory. 
 
 (c) The controversial use of this question of theory. 
 
 III. Reroiiiinendations C2 
 
 Improvements in court-martial procedure and limitation of sentences. 
 2
 
 LETTER OF THE SECRETARY OF WAR. 
 
 MARCH 1, 1919. 
 
 MY DEAR GENERAL CRO WDER : I have been deeply concerned, as you 
 know, over the harsh criticisms recently uttered upon our sj^stem of 
 military justice. During the times of peace, prior to the war, I do 
 not recall that our system of military law ever became the subject 
 of public attack on the ground of its structural defects. Nor during 
 the entire war period of 1917 and 1918, while the camps and canton- 
 ments were full of men and the strain of preparation was at its 
 highest tension, do I remember noticing any complaints either in 
 the public press or in Congress or in the general mail arriving at 
 this office. The recent outburst of criticism and complaint, voiced in 
 public by a few individuals whose position entitled them to credit, and 
 carried throughout the country by the press, has been to me a matter 
 of surprise and sorrow. I have had most deeply at heart the interests 
 of the Army and the welfare of the individual soldier, and I have the 
 firmest determination that justice shall be done under military law. 
 
 I have not been made to believe, by the persual of these com- 
 plaints, that justice is not done to-day under the 'military law or has 
 not been done during the war period. And my own acquaintance 
 with the course of military justice (gathered as it is from the large 
 number of cases which in the regular routine come to me for final 
 action) convinces me that the conditions implied by these recent 
 Complaints do not exist and had not existed. My own personal 
 knowledge of yourself and man}' of the officers in your department 
 and in the field corroborates that conviction and makes me absolutely 
 confident that the public apprehensions which have been created 
 are groundless. I wish to convey to you here the assurance of my 
 entire faith that the system of military justice, both in its structure 
 as organized by the statutes of Congress and the President's regula- 
 tions and in its operation as administered during the war, is essentially 
 sound. 
 
 But it is not enough for me to possess this faith and this conviction. 
 It is highly important that the public mind should receive ample 
 reassurance on the subject. And such reassurance has become nec- 
 essary, because all that the public has thus far received is the highly 
 colored press reports of certain extreme statements, and the Con- 
 gressional speeches placing on record certain supposed instances of 
 
 3 
 
 M
 
 4 MII.ITAI'.Y .IfSTK I. I ri:!X<; THK WAR. 
 
 h and illegal treatment. The War Depart incut and its repre- 
 sentatives have ii(t been in a position to make any public defense or 
 explanation ami have refrained from doing so. The opportunity 
 recently afforded tlio members of your staff to appear before the 
 Senate Committee on Military Affairs has been an ample one, and it 
 has furnished, I hope, entire satisfaction to the members of that 
 committee. But of the proceedings of that commit tee I perceived no 
 general public notice; the testimony, when published, will be some- 
 what voluminous, and its publication will not take place for some 
 time yet. and it will certainly not reach the thousands of intelligent 
 men and women who read the original accounts. And yet it is essen- 
 tial that the families of all those young men who had a place in our 
 magnificent Army should be reassured. They must not be left to 
 believe tliat their men were subjected to a system that did not fully 
 deserve the terms "law" and "justice." And this need of reassurance 
 on the part of the people at large is equally felt, I am sure, by the Mem- 
 bers of Congress in both Houses, who have of course not yet become 
 acquainted with the proceedings before the Senate committee. It is 
 both right and necessary that the facts should be furnished. It is 
 indeed a simple question of furnishing the facts; for when they are 
 furnished, I am positive that they will contain the most ample re- 
 assurance. 
 
 Those facts are virtually all in your possession, on record in your 
 office. I am aware that they are voluminous and that a complete 
 explanation and answer to every specific complaint is impracticable. 
 But I believe that you are in a position to make a concise survey 
 of the entire field and to furnish the main facts in a form which will 
 permit ready perusal by the intelligent men and women who are so 
 deeply interested in this subject. 
 
 I have been asked by a Member of the House of Representatives to 
 furnish him with such a statement. And I am now calling upon 
 you to supply it to me at your early convenience. 
 Faithfully yours, 
 
 XEWTOX D. BAKER, 
 
 Secretary of War. 
 
 To Maj. Gen. K. H. CROWDER, 
 
 Judge Advocate General, War Department, 
 
 Washington, D. C.
 
 LETTER OF THE JUDGE ADVOCATE GENERAL. 
 
 MARCH 10, 1919. 
 
 DEAR Mil. SECRETARY: On March 1, 1919, you addressed to me a 
 letter concerning the recent criticisms uttered upon our system of 
 military justice, and asking me to make a concise survey of the entire 
 field and to furnish the main facts in a form which will permit ready 
 perusal by the intelligent men and women who are so deeply interested 
 in the subject. On March 8 I replied to you, giving you a brief and 
 concise survey of the field of controversy ; but the limitations of that 
 letter made it impracticable for me to deal with the subject in all its 
 scope. The subject is one in which it needs only to set forth the facts, 
 based on the records of my office, in order to perceive the injustice of 
 the charges that have been made. This exposition of facts must be 
 directed to each one of the main charges that have been voiced on the 
 floor of Congress and in the press. 
 
 In my first letter to you, dated February 13, forwarded by you to 
 the chairman of the Senate Committee on Military Affairs, and sub- 
 sequently printed in the Official Bulletin of March 5, the six general 
 criticisms voiced by Senator Chamberlain were dealt with at great 
 length by statistical tables compiled from the records in my office. 
 But these tables are, perhaps, too voluminous for ordinary perusal; 
 and, on the other hand, the letter did not deal with a number of other 
 specific criticisms made by other Members of Congress in the press. 
 I have, therefore, gone over the entire subject so as to include a num- 
 ber of additional points of criticism, and have dealt with the specific 
 points of Senator Chamberlain by omitting the elaborate statistical 
 studies contained in my first letter. 
 
 It is my belief that the intelligent public, particularly the members 
 of the legal profession and of the press, would welcome such an 
 exposition of the facts ; because the case is one in which it is necessary 
 only to peruse the facts in order to estimate at their true value the 
 criticisms, made in haste and based upon such imperfect and mis- 
 leading data. 
 
 Before proceeding to set forth these facts, I will take a few words 
 to indicate my own attitude toward the standards of military justice. 
 
 In 1888, while still a lieutenant of Cavalry, some years before I 
 entered the Judge Advocate General's Department by detail, I 
 addressed a letter to Col. G. Norman Lieber, then Acting Judge 
 Advocate General, inviting attention to the necessity for a revision 
 of the military code. Col. Lieber declined to take up the matter, 
 fearing that the code might suffer in essential features by a revision 
 which might adapt it too much to the methods and traditions of 
 
 5
 
 6 MILITARY JUSTICE DTJRINC TIIK \V.\U. 
 
 rivil practice. A^ain in 1896, noticing (liat < 'onirre-- ; had enacted 
 a statute for the revision of all statutes, and knowing that tho 
 rommi>sion appointed under (he terms of that statute would neces- 
 sarily consider the Articles of War, I addressed a second letter to 
 the then (Icn. Lieh.T, Judge Advocate General, asking his attention 
 to the opportunity (his afforded to secure a proper revision of the 
 Articles of War. Me again declined to take up the matter, remark- 
 ing that he felt (hat the code needed very little, if any, revision, and 
 that if he had the entire responsihility of revising it he would limit 
 himself to the eliminating of obsolete articles and a rearrangement 
 of the code. Again in 1903, while Chief of the First Division of the 
 (lenerail Staff, I prepared a draft of revision of the military code 
 and snhmitted it to the Secretary of War in December of that year 
 for his recommendation to Congress. This came to nothing. In 
 1911, upon becoming Judge Advocate General, I renewed my efforts, 
 which continued for the ensuing five years and through three Con- 
 irrc<ses. The revision of 1916 was the culmination of this series of 
 proposals. This record, therefore, must be some, testimony to tho 
 fact- that my attitude toward the improvement of the military code 
 lias been an advanced one, at least in comparison with tho attitude 
 of others whose authority was superior to mine at tho time, and that 
 these convictions of mine are publicly on record for a period of at 
 Iea-t 30 years past. 
 
 These few faets will indicate that I am, at any rate, not one who 
 has been satisfied with anything less than the highest standards of 
 justice for embodiment in our code of military law; and that my 
 constant and urgent efforts have been devoted to maintaining tho.-e 
 standards and to improving their code whenever it seemed to me to 
 fall short of those standards. It was with this spirit that my office 
 proceeded with the administration of military justice when this 
 country entered the great war, and the American Army, enlarged 
 nianyfold, was certain to put our system to such a test as it had 
 never before experienced in our entire history. The staff of the 
 Judge Advocate General was gradually enlarged from about 30 
 officers to more than ten times that number; and all of the new judge 
 advocate- were, of course, taken direct from civil practice, with little 
 or no experience in the military practice of the National Guard. 
 Thus the assurance was plain that the spirit and traditions of the 
 criminal common law, with all its safeguards for the accused and of 
 its guaranties of full and fair trial, would dominate in the work of the 
 judge advocates. 
 
 I mention these faets as demonstrating that it is humanly improb- 
 able that any state of things, even remotely justifying some of the 
 extreme epithets recently used in public criticism, could have existed 
 in our Arm}- during the last two years.
 
 MILITARY .JUSTICE IVFRIXC THE WAR. 7 
 
 I must further digress for a moment to state the extent of my own 
 personal responsibility for the administration of military justice 
 during the last two years. Appointed Judge Advocate General 
 February 15, 1911, and reappointed upon the expiration of the first 
 term of four years in 1015, I was in active charge of the Office of 
 the Judge Advocate General from the outset of the war to the end 
 of 1917. In the meantime, on May 22, 1917, I was detailed as 
 Provost Marshal General and vested with the execution of the selective 
 draft. I divided my time during the remainder of 1917 between the 
 two series of duties. In the meantime, Brig. Gen. S. T. Ansell, as 
 senior officer on duty in the Judge Advocate General's Office, after 
 August, 1917, acted upon a large share of the office work without 
 submission to myself. In February, 1918, a branch office of the 
 Judge Advocate General's Office was established in France and 
 Brig. Gen. E. A. Kreger was appointed as Acting Judge Advocate 
 General in that position. In December, 1917, at your request, I 
 arranged to divide my time about equally between the Office of the 
 Judge Advocate General and that of the Provost Marshal General; 
 but Gen. Ansell continued to have detailed supervision over the 
 section of military justice. Later, viz, during the months of May 
 and June and parts of April and July, Gen. Ansell was absent in 
 France on inspection duty, and during his absence Col. J. J. Mayes 
 was senior officer and supervised all details of administration of 
 military justice. The remainder of 1918, after July, Gen. Ansell 
 again became senior officer in charge of that subject. Meanwhile, 
 the Military Justice Division of the office had been enlarged so as 
 to comprise nearly 50 officers on duty in Washington. Thus during 
 the latter quarter of 1917 and the whole of 1918 the rulings upon 
 individual court-martial cases did not come to my personal attention, 
 except in rare instances, and did not usually bear my signature. 
 Nor were the rules of the administration, so far as framed in my 
 office during that period, personally framed or passed upon by myself, 
 with a few important exceptions to which I will later allude. 
 
 What I wish to make clear is that, so far as my active approval 
 or disapproval is concerned, there was no time during the latter part 
 of 1917 and the whole of 1918 when a court-martial ruling or a rule 
 of practice could not have been made or put into effect by the senior 
 officer in supervisory charge of military justice, without personal 
 submission to myself. More specifically, had either of the above- 
 named senior officers found reason sufficient to himself to alter the 
 practice in any detail or to disapprove any individual court-martial 
 sentence, he was in a position to exercise free responsibility to do so 
 without prior approval of myself. An important exception to this 
 statement is the rule known as General Order No. 7, 1918, of which 
 later explanation will be made.
 
 8 MILITARY .7I-STKT. HIT, I NT, TFIK WAR. 
 
 But lliis circumstance, that I was not personally responsible for 
 the <!Hails of administration of military justice during the above 
 period and that another officer was thus responsible, does not, of 
 course, idler the fact that up to the latter part of 1017 I did share 
 ompletely that personal responsibility. Moreover, whatever my 
 personal responsibility, or laek of it, for individual measures or court- 
 jnartial rulings, I am, of eourse, responsible for the structure and 
 methods of military justice as they existed at the time of our en- 
 trance into the war responsible, that is, in so far as the Judge Ad- 
 vocate General's views were consulted by the Secretary of War and 
 by Congress iu the framing of the statutes and the regulations, and 
 in so far as those statutes and regulations were enforced in the field 
 and in my ofiice. And it is because of that responsibility, and be- 
 cause of my firm belief in the merits and high standards of our system 
 of military law, that I am now concerned in pointing out the facts 
 which vindicate it from the recently published reproaches. Regard- 
 less of my share of responsibility during 1917 and 1918 for the opera- 
 tion of the system, I could not have performed the duties of that 
 office up to that period without being vitally interested in vindicat- 
 ing the honor of the Army and War Department as involved in the 
 maintenance of that system. 
 
 I propose now, first, to refer to certain individual cases recently 
 criticised; next, to comment on the general defects alleged to exist 
 in the system of military justice; and then to close with some recom- 
 mendations. 
 
 I. INDIVIDUAL CASES CITED FOR CRITICISM. 
 
 In the recent speeches uttered on the floor of Congress, in the two 
 or three press articles, and in some of the testimony given before the 
 Senate committee and published in the press, certain individual cases 
 of court-martial judgments are cited as notable instances of in- 
 justice. 
 
 In this letter it is virtually impossible for me to set forth the ex- 
 planation that can be made for each of these cases. The majority 
 of them are cases in which the sentence is said to be excessively 
 re; on this general topic of severity I will later offer what neecls 
 to be said. Other cases are supposed to be marked by some other 
 form of injustice or illegality. To comment adequately on all these 
 and other cases, vhirh from time to time may be cited, would here 
 be needless and impracticable. I have, therefore, gather all these 
 cases in an' appendix which schedules each case thus cited and makes 
 such explanation as our records afford; and this schedule of indi- 
 vidual cases I \ull file with you for reference. In the meantime, I 
 think that I can allay the apprehensions that have been excited by 
 the public allusion to these cases if I take two or three of the most 
 typical and show how groundless are the criticisms.
 
 MILITARY JUSTICE DURIXG THE WAR. 9 
 
 This first case cited in a speech in the Senate is that of a soldier at 
 Camp Gordon (record No. 110505, tried January 24, 1018), who, 
 while patroling the town as military police, was found at midnight in 
 a shop just after a burglary. Being charged with burglary, he 
 asserted that he had entered the shop in search of the burglars. 
 His story was disbelieved, and he was found guilty; the first finding 
 had been not guilt} 7 , but at the commanding officer's request there 
 was a reconsideration, and the second finding was guilty. On revi- 
 sion of the record no legal error could be found, but this office reached 
 the opinion that though there was sufficient evidence to sustain the 
 finding, the evidence did not go so far as to show his guilt beyond a 
 reasonable doubt. In such a situation no supreme court in the 
 United States (with three or four exceptions only) would interfere 
 and set aside a jury's verdict. Nevertheless, this office recom- 
 mended a reconsideration of the verdict by the reviewing authority. 
 It was in fact reconsidered, but the reviewing authority adhered to 
 the finding. But the feature for emphatic notice is that reconsidera- 
 tion was given, not by exercising the " arbitrary discretion of a mili- 
 tary commander," but by referring the case to tJie judge advocate of 
 the command, as legal adviser. The judge advocate wrote an elabo- 
 rate review of the evidence, disagreeing with the vie\\ of this office 
 and recommending confirmation, and the commanding general fol- 
 lowed this opinion of his law officer 
 
 This case, therefore, instead of being, as the critic had been led to 
 believe, an illustration of "the control which the military commander 
 exercises over the administration of civil justice," illustrates exactly 
 the opposite. For, in the first place, the confirmation of the sentence 
 was made, not by the arbitrary military discretion of the commanding 
 officer, but upon the legal opinion of his Judge Advocate; and, in the 
 second place, the reconsideration which w T as actually given by the 
 Judge Advocate, on the point of proof beyond a reasonable doubt, 
 was a measure of protection which the law does not provide in any 
 civil court hi the United States for the control of a jury's verdict. 
 The case is a good illustration of a feature in which the system of 
 military justice sometimes docs even more for the accused than the 
 system of civil justice. 
 
 Another case cited on the floor of Congress is one of disobedience to 
 orders to drill and of having seditious literature in possession for 
 distribution. The offender was a conscientious objector who had not 
 been given an opportunity for noncombatant service and who was not 
 attempting nor intending to distribute the literature. The sentence 
 was death; but the critic adds that it was ''disapproved by the Presi- 
 dent, and the prisoner discharged," and he expresses the hope that 
 "the President will exercise the same clemency and show the same 
 mercy in many other cases." Now, the facts of the record dcmon- 
 110755 19 2
 
 10 MILITARY .irsTICK Iri!IX; Tit! \VAB. 
 
 :e tin- pre< i .c oppo.-.ite <f what the critic \\':is led to believe; 
 because in this ca-e (record No. 110700, tried June 17, 191S1 it waa 
 not the I're.xident's rf> n,i a- / that discharged tin- primmer; it was the 
 effective o t nriit'n>n of tlnl c, nj .s-i/.v///// i if niil'tarif l<r which the critic 
 supposes not to exist. What happened wa- ih.it the Judge Advocate 
 (lenend's Ollice recommended disapproval of the sentence. 01, 
 strictly le^al grounds that the order to drill was (under General 
 Orders, No. 28, 1918) not a lawful command, and hi- dUobedi. 
 was therefore not an offense; and that then* was no evidence of the 
 accused '-> intention to distribute the. literature. Tin- .-.cntence was 
 therefore disapproved and the prisoner discharged on the le^al 
 grounds stated by my odice. This case, therefore, far from illus' 
 ing the critic's thesis, rather affords an illustration of the operation of 
 military law and justice in entire analogy to that of civil law and 
 justice. 
 
 Another case, cited in the newspaper article read into the Cong 
 sional Record (Cong. Rec., vol. 57, No. 44, Jan. 2:J, 1918, page 10s^ 
 concerns two death sentences imposed in France for sleeping on post 
 in a front-line trench. There are really three distinct questions in- 
 volved in th<>-<- aaee lirsi. whether a sentence of death in all < 
 of this offense should he the inexorable policy; secondly, whether, if 
 not, theM- particular cases showed sullicient extenuating circum- 
 stances: and, thirdly, whether the case- were fairly and fully tried to 
 get at the facts. 
 
 Upon the first question it is enough here to say that General 
 Pershing especially urged the importance of adopting this policy for 
 the protection of his Ainu's welfare; and his chief law ollicer con- 
 curred in this message; and that under such circumstance-; no one 
 could have been criticized for acceding to this urgent request and 
 adhering to the principle handed down by all the fixed traditions of 
 military law. I, myself, us you know, was at first disposed to defer 
 to the urgent recommendation of General Pershing, but continued 
 reflection caused me to withdraw from that extreme view, and some 
 days before the case was presented for your final action the record 
 contained a recommendation from me pointing in the direction <>f 
 clemency. 
 
 Upon the. M-cond question, it can be stated that, except for the- 
 youth of the. offenders (they were about 20 years of age), there were 
 no special extenuating circumstances. The task laid upon these 
 soldiers was no greater in its exactions than was laid upon hundreds 
 of others at the very same moment in the allied forces doing duty 
 in the trendies. The Chivf of Staff's memorandum states the situa- 
 tion with great foixv: 
 
 The American Expeditionary Force ia confronted by the most alert and dangerous 
 foe known in th^ history of the world. The safety not only of the spntinel's company 
 but of the entire command ia absolutely dependent on the -vigilant performance of
 
 MILITARY JUSTICE DURING THE WAR. 11 
 
 his duties as a sentinel. The safety of that command depends in an equal measure 
 upon the prompt and complete obedience of the different men to the lawful com- 
 mands of their superior officers. There is no doubt but that the members of this court 
 had had the necessity for the alert performance of the duties of a sentinel strongly 
 impressed upon them at the immediate time of the commission of those offenses. 
 Before daylight on the morning of November 3, 1917, the first attack by the Germans 
 upon the American lines took place. A salient near Artois, which, was occupied by 
 Company F of the Sixteenth Infantry, was raided by the Germans, who killed 3 of 
 our men. wounded 11, and captured and carried off 11 more. The very next night 
 that is the night of November 3-4, 1917 Private Sebastian was found sleeping on his 
 post, and on the night of the 5th, Private Cook was found sleeping on his post. Both 
 of these men belonged to the regiment which had suffered in the German raid of the 
 2d and 3d. This condition of affairs presented an absolute menace not only to that 
 portion of the line held by the American, troops, but to the French troops in the 
 adjacent, sectors. 
 
 Thtit the decision to exercise clemency was a sound one, I do not 
 doubt. But no candid reader of the record could look upon these 
 cases as anything but a distressing instance of the inevitable mental 
 conflict that arises between the stern necessities of war discipline 
 and the natural human sympathy for men who have incurred the 
 death penalty a conflict which equally agitates every civil judge 
 and every civil executive when such a case is presented for his action. 
 It is 'unconscionable that this situation should b-3 cited as a peculiarity 
 of the military system. 
 
 The third question whether the case was fairly and fully tried so as 
 to present all the facts would require too extended a survey forgiving 
 all the details here. I content myself with assuring you (what you 
 indeed know already) that the record was scrutinized by several of 
 the most experienced judge advocates of my staff, as well as by 
 myself personally; and that, although the cases were not tried as 
 thoroughly as they could and should have been tried, where the 
 death penalty was involved, nevertheless no reversible error was 
 found and there was no doubt of the facts, in either case. The only 
 issue in this case was the severity of the sentence, as above mentioned. 
 
 These illustrations must suffice for the present to show how unre- 
 liable have been the public citations of individual cases of supposed 
 injustice. What the source of information has been for each of 
 these cases, I am not aware. But I believe that I am justified in 
 assuring you that it would be a mistake for the intelligent public 
 to assume, when an individual case of supposed injustice is cited, 
 that there is necessarily any ground for believing that injustice has 
 been done. The information seems to have come from such partisan 
 sources, and there are so many hundreds, that it is natural to find 
 the details gradually altering themselves, in transmission, so that 
 the case as stated becomes one of obvious injustice, and yet the 
 case in its actual facts was nothing of the kind. How unreliable 
 are these citations of supposed cases of injustice can be seen in the 
 circumstance that out of the several scores of cases recently cited
 
 12 MILITARY .ITSTK K IHMMXC THK WAR. 
 
 in a speech on the floor of the House (Cong. Her., Feb. 22, p. 4640) and 
 cited with the detail of general court-martial number and place of trial 
 and name, it has thus far proved impossible to find and identify more 
 than a small fraction of the cases in the records of this office, owing 
 to errors in the citations. 
 
 I must, therefore, so far as individual cases are concerned, content. 
 myself with giving you the assurance first, that this office is ready 
 and anxious to investigate and supply full explanation for every 
 case that can be identified, and secondly, that so far as such inves- 
 tigation has thus far been able to be made the cases, with few excep- 
 tions, reveal that they merited no such public statement. 
 
 What is really at issue, however, is the general state of things in 
 the administration of military justice; i. e., whether there do exist 
 specific shortcomings of law or of method which in themselves 
 permit and have permitted the doing of injustice in any appreciable 
 fraction of cases. It is to that real issue that I now address myself. 
 
 II. GENERAL PRINCIPLES AND METHODS IN MILITARY JUSTICE. 
 
 Assembling the various criticisms of a general nature, they seem to 
 be reducible to the following heads: 
 
 1. That the general treatment of accused soldiers is not a <<.< >nl ing to 
 ike r'ujnl limitations of law as embodied in the Criminal Code, but is 
 to the arbitrary discretion of the commanding officer in each 
 
 J. That the in ilitary Criminal Code itself is not modern and enlightened t 
 but is an archaic code which systematically belongs to medieval tinn*. 
 
 3. That a soldier may be put on trial by a commanding officer s arbi- 
 trary discretion, without any preliminary inquiry into the probability 
 of the charge. 
 
 4. That commanding officers do thus put on trial a needlessly large 
 number of trivial charges. 
 
 >. That the court-martial is composed of ami tin dijtit*< is <<! n<1<d 
 by msn not acquainted with military Ian-. 
 
 6. That the Judge Advocate combines incongruously the functions of 
 prosecutor, judicial adviser of the court, and defender of the accused. 
 
 7. That second lieutenants "Icnowing nothing of law and less than 
 nothing of court-martial procedure" are assigned to the defense of 
 "enlisted men charged with capital or oilier most serious offenses." 
 
 8. That a plea of guilty is received from an accused on a charge for 
 which the sentence of death may be imposed. 
 
 9. That commanding generals, as reviewing authorities, send bad- for 
 n consideration judgments of acquittal. 
 
 10. Thai the judgment of the court is kept s< en t until after the action 
 of the reviewing authority is taken, even whf-n the initial judgment is 
 an acquittal.
 
 MILITARY JUSTICE DURING THE WAK. 13 
 
 11. That the sentences imposed by courts-martial are as a rule exces- 
 sively severe. 
 
 12. That the sentences imposed by courts-martial are variable for the 
 same offense. 
 
 13. That the Judge Advocate General's office either partakes in the 
 attitude oj severity or makes no attempt to check it by revisory action. 
 
 14. That the action taken in the Judge Advocate General's office is 
 ineffectual to enforce military law and procedure, because its rulings 
 do not have the force of a Supreme Court mandate, but are only recom- 
 mendatory, and are either ignored by the division commanders or vetoed 
 by the Chief of Staff. 
 
 I will now take up these assertions briefly in succession. 
 
 1. THAT THE GENERAL TREATMENT OF ACCUSED SOLDIERS is 
 NOT ACCORDING TO THE RIGID LIMITATIONS OF LAW AS EM- 
 BODIED IN THE CRIMINAL CODE, BUT is ACCORDING TO THE 
 ARBITRARY DISCRETION OF THE COMMANDING OFFICER IN EACH 
 CASE. 
 
 The complete refutation of this assertion will appear very plainly 
 in the answers to the other specific criticisms, which are merely 
 details of this general charge; but in order to gather the full force of 
 the answers which will be made to those more specific criticisms it is 
 necessary to keep in mind the general structure and machinery of the 
 military courts. It maj 7 - be supposed that the intelligent public in 
 general is not aware of their essentially legal nature and procedure. 
 The public impression perhaps has been gained that there is sub- 
 stantial correctness in the language of one of the Members of Congress: 
 
 The records of the courts-martial in this war show that we have no military law or 
 system of administering military justice which is worthy of the name of law or justice; 
 we have simply a method of giving effect to the more or less arbitrary discretion of the 
 commanding officer. 
 
 As a concrete demonstration of the incorrectness of this assertion, 
 the facts, later to be cited, taken directly from the records of courts- 
 martial appealed to by the critic, must suffice as a principal refutation. 
 
 And yet the critic's remarks call for more than the citation of con- 
 crete facts to the contrary. The substance of my counterassertion is 
 that although the theory of military justice does differ slightly from 
 the theory of civil justice, yet in substance and in practice both of 
 them, in our inherited Anglo-American system, are fundamentally 
 identical, in that justice is founded upon and strictly limited by the 
 requirements and safeguards of strict rules of law. 
 
 The only kernel of correctness in the abstract statement made in 
 Congress is that the theory of military justice is in its general purpose 
 somewhat different from the theory of civilian criminal justice. The 
 contrast of theory between the two is well set forth in a statement of
 
 14 MILJTAUY .rrsTici. in;ix; THK w.vit. 
 
 William T. Sherman. made 3 a^>. in discussing our 
 
 Articles of War. lie sa\ 
 
 Tho object of civil law its to secure 1< every human being in u <t)mnn 
 nuiin of libert y, security, and happiness, consistent with tin- safety of all. Tin- objis t 
 of military law is to govern armies composed of strong men, so as to bo capable of 
 the largest nie:i-nre of force at the will of the Nation. 
 
 Thi> definition of Gen. Sherman shows that the objects to be 
 attained arc different, in that military justice aims to make the man 
 a bettor soldier or to eliminate him from the military organization if 
 he ran not be improved, while civilian justice looks to the ultimate 
 protection of the community at large. 
 
 P>ut, oneo this difference of theory ami purpose i* conceded, the 
 two systems proceed in identical -inttlmd, viz, by the application of 
 strict rules and regulations so drawn as to give equal and fair treat- 
 ment to all men, and to protect them against mere arbitrary discre- 
 tion on the one hand, and the inflexible rigor of automatic penalties 
 on the other hand. 
 
 The former end is obtained by a system of courts, procedure, and 
 definition of offenses which contains the counterpart of civil justice 
 in virtually every respect; and the latter aim, viz, to protect the 
 offender from the harsh consequence of rigid penalties, is secured by 
 the method of indeterminate sentences for virtually all military sen- 
 tences. In a few words, let me set forth the way in which this system 
 operates. 
 
 The system of courts, procedure, and defined offenses is one of law 
 and order and not one of arbitrary discretion of the commanding 
 officer. Tho proceed ings follow the fundamentals of our criminal com- 
 mon law the accused has his challenges; he may have process for his 
 witnesses; he has counsel without cost, either selected by himself or 
 assigned by the proper authority: he is not compelled to testify 
 against himself; he is furnished on request a copy of the testimony 
 and proceedings. The proceedings are so conducted as to preserve for 
 scrutiny of a superior authority every point of law that can be raised 
 for the protection of the accused. This record of proceedings goes 
 up to the reviewing authority and then to the Judge Advocate 
 ral. The Judge Advocate General's rulings on revision repre- 
 sent all those legal principles which are required by law and regula- 
 tions to be observed. How completely legalistic is this scrutiny of 
 the trial record can best be shown by reproducing here from Form 
 No. 16 the fundamental points to be observed in every general court- 
 martial trial before it receives approval in the Judge Advocate 
 ral's Office. This form is known as Form No. 16, and upon 
 the initial examination of the record these questions must all be 
 answered, before sending the case to the Chief of the Division of 
 Military Justice:
 
 MILITARY JUSTICE DURING THE WAR. 15 
 
 Was court ordered by proper authority? 
 
 Are all orders showing membership of court properly entered in record? 
 
 Does record show place, date, and hour court convened? 
 
 Are all members of court, judge advocate, and assistant judge advocate accounted 
 for as present or absent? 
 
 Was accused given opportunity to introduce counsel? 
 
 Was reporter sworn? 
 
 Was interpreter sworn? 
 
 Was accused extended right of challenge as to each member of court? 
 
 Was action of court upon challenges regular and properly taken? 
 
 Was the court sworn? 
 
 Was the judge advocate sworn? 
 
 Was the assistant judge advocate sworn? 
 
 Was the accused properly arraigned? 
 
 Are charges and specifications and name of officer signing charges copied into record? 
 
 Was the trial within statute of limitations? 
 
 Are pleas of accused regularly entered? 
 
 Were the witnesses sworn? 
 
 Are the findings properly entered? 
 
 Is the record properly authenticated? 
 
 Is the action of reviewing authority properly entered in record and signed? 
 
 In case of adjournment or continuance, are each day's proceedings properly sigwd 
 by judge advocate? 
 
 Alter each adjournment during trial is presence or absence of members of court, 
 judge advocate, assistant judge advocate, accused, his counsel, and reporter properly 
 accounted for? 
 
 Did all members who participated in proceedings in revision vote on original find- 
 ings and sentence? 
 
 W<ire pleas of guilty properly explained by president of the court? 
 
 \\ r rightd of accused as a witness properly extended and explained? 
 
 Does each specification state an offense under the Articles of War? 
 
 Are the findings legal? 
 
 Is the sentence legal? 
 
 Does the evidence sustain the findings of the court? 
 
 Is the action of the reviewing authority legal and properly taken? 
 
 Does any ruling of the court on the admission of evidence or other matters affect 
 the substantial rights of accused? 
 
 Did the court have jurisdiction of person and offense? 
 
 Such arc the fundamental points of law which must first bo verified 
 before the record proceeds further in the office. But this is only the 
 beginning of the scrutiny. The Office of the Judge Advocate General 
 in the Division of Military Justice is divided into several sections 
 according to the nature of the sentence imposed, viz, disciplinary 
 barracks cases, retained in service cases, penitentiary cases, death 
 and dismissal of officers cases. In the first two branches, including 
 the minor sentences, the case is initially verified and approved or 
 disapproved by one officer; the allotted number during the greater 
 part of 1918 was 10 majors in this branch; the record then goes to 
 the chief of the section. Thus two officers under the Judge Advocate 
 General must pass upon cases of this class. The same is true of the 
 section dealing with sentences not including dishonorable discharge
 
 16 M1I.ITAKY .11 STICK nrniM! THi: WAII. 
 
 (retained in service). In both these < -!a-> e- <>f ca^es written opinions 
 .ire prepared only where tin- Oftaei involve some new or important 
 point of law or some serious irregularity or nn unduly severe sentence. 
 In the third section, that of penitentiary ca-es. to which six majors 
 arc allotted, the written opinion is required in every ease; one 
 oflicer prepares this opinion, and it then passes to the chief of the 
 section for his approval; if both officers approve, it then passes to 
 the board of review, consisting of three other ollieers, acting as an 
 appellate court, eacli of whom must concur in approval of the opinion 
 tor note his dissent) before the opinion is transmitted to the Chief of 
 the Division of Military Justice; finally the. opinion must be approved 
 by the chief of that division. Thus, for cases of penitentiary sen- 
 tences. six ollieers must have scrutinized the case and concurred in 
 or dissented from the final opinion before its submission for signa- 
 ture to the Judge Advocate General. In the fourth section, dealing 
 with cases where the sentence is deatli or (for an officer) dismissal, 
 again a written opinion is required in every case, and in this instance 
 the chief of the section, upon receiving that opinion, assigns it to a 
 second officer who makes an independent examination and review: 
 if the second officer concurs in the first opinion, the chief of the section 
 may then approve it and send it further upward: but if the second 
 officer does not concur, the case is handed to a third officer for 
 examination; not until two officers concur in an opinion does the 
 chief of the section accept it and approve it and send it onward; it 
 then arrives at the board of review, where each of the three officers 
 on the board of review must concur in the final opinion; it then 
 goes in to the Chief of the Military Justice Division for his sanction. 
 Subject to office changes in procedure from time to time, the fore- 
 going is substantially the course of examination of court-martial 
 e which has been in vogue heretofore in my office. Thus in these 
 most serious cases seven officers must have passed upon the case 
 before it arrives finally for the signature of the Judge Advocate 
 (leiieral. Moreover, the board of review is a double one, like some 
 appellate courts, having two branches, each composed of three 
 officers; during the past six months or more these srx officers repre- 
 sent one former chief justice of a State supreme court (who resigned 
 his office to become judge advocate), one former justice of nine years' 
 incumbency on the Philippine Island Supreme Court, two professors 
 of criminal law from leading universities, who have been between 
 15 and 20 years at the bar, and two other eminent practitioners of 
 equal or longer legal experience before their appointment as judge 
 advocates. It may be safely asserted that in no State of the Union 
 is any more thorough scrutiny given to the record of a criminal case 
 than is given in my office, and that in most State supreme courts the 
 scrutiny does not approach in thoroughness the methods here 
 employed.
 
 MILITARY JUSTICE DURING THE WAR. 17 
 
 Moreover, it should also be kept in mind that the accused under the 
 system of military justice enjoys an advantage which does not exist 
 in civil justice, viz, the automatic appellate examination of every 
 serious case. In civil justice there is no appellate or revisory action 
 unless the accused has the moral aggressiveness to insist upon it, and 
 possesses the money (or the friends who will contribute the money) 
 to print the record and to retain counsel who will argue the case on 
 appeal. But every soldier is assured not only of an automatic appeal, 
 as a safeguard against illegal or unfair condemnation, but also of a 
 double appeal in serious cases. The proceedings (except in case of 
 inferior courts, corresponding to petty police courts, and having 
 power to impose only short sentences of imprisonment) are taken 
 down verbatim, and every word of the testimony, every ruling of the 
 court, and every claim, of counsel is submitted, first, to the reviewing 
 authority in the field. This authority is the commanding general who 
 appointed the court and who in all serious cases (practices vary some- 
 what in the different divisions) submits the case to the judge advocate 
 of the division for a quasi judicial opinion. This judge advocate, 
 having the rank of a major or lieutenant colonel, has been, since 
 September, 1917, in almost every instance a lawyer fresh from civil 
 life, chosen for his high standing, and imbued with the standards and 
 traditions of civil practice rather than those of the Regular Army; 
 hence, likely to give fully as careful scrutiny as any civilian judge 
 would give. If the reviewing authority approves the judgment, it 
 then goes on, if a general court-martial case, to the Judge Advocate 
 General at Washington for the second appellate scrutiny (if in France, 
 to the Paris branch office of the Judge Advocate General's Office); 
 the method of scrutiny in this office has been above described. It 
 goes finally to the Judge Advocate General or to the senior officer 
 acting as Judge Advocate General for military justice, who appends 
 his signature if satisfied. Every general court-martial case thus 
 obtains thorough scrutiny in two separate stages. 
 
 Putting together these features of the automatic appeal and the 
 thorough scrutiny of all general court-martial cases by at least three 
 superior officers, and in some classes of cases by eight superior officers, 
 before final disposal, it is believed that no such guaranties for the 
 protection of the accused, in the scrutiny of the trial courts' judgment 
 in criminal cases, exist in any civilian system in the United States. 
 I take consolation in believing that if the public at large and particu- 
 larly the families of those men who have been subjected to military 
 discipline during the past two years could realize the thoroughness of 
 this s} 7 stem, they would feel entirely satisfied that the system is 
 calculated in its method to secure ultimate justice for every man; 
 and that the instances where this result is not obtained must be 
 exceptional only. In the foregoing description, I have tried to make 
 110755 19 3
 
 18 MILITARY .j i -STICK i>ria.\<; TIU-; \VAK. 
 
 it possible for the intelligent civilian to vi^uali/.e (lie military pro- 
 cedure a.s it really is, and MH i-( I in the fervid imagination of 
 those \\ho do not know it and have never tried to understand it. 
 
 Tho other chief stage in military ju.-tiee, vi/., the stage of tho 
 ..ig <>f the sentence, has for its aim, as already stated, to protect 
 the. oifender from the harsh or unequal consequences of a rigid 
 m of penalti.'s. It atUiins this end by u method of indeienui- 
 (or prolmtionary) sentence-. It is not generally known, i pre- 
 sume, ihat the only War Department prisons to-day in the I'nited 
 State-, ai-e tin- three ^ (-called Disciplinary Barracks, vi/,, at Fort 
 Lcavcnworth, Kans., at Fort Jay, Governors Island, N. Y., and 
 Vlcatraz, San Francisco, in which are served substantially all 
 sentences of imprisonment for military offenses other than the short 
 terms (less than six months) served in the camp guardhouse. In 
 the-e disciplinary barracks, every sentence is indeterminate as b 
 minimum, i. e., virtually a probationary sentence for every man 
 whose oll'ense is not so heinous as to require immediate separation 
 from the Army. Speaking generally, soldiers convicted of purely 
 military offenses, i. e., desertion, mutiny, absence without leave, 
 dis. >!)edience to oilic .tidting an officer, etc., etc., arc sent to 
 
 these barracks; the jc nitentiary being used (except in rare and 
 heinous eases) only for those oll'enses involving murder, forgfry. 
 embe//lement, or other civil <-rimes. The indeterminate or proba- 
 ti-:iary sentence having no minimum, only a maximum, the con- 
 finement may be terminated at any time, and the offender (except 
 in the unusual case where a sentence of dishonorable discharge h.-is 
 not been suspended) may be restored to duty in the Army when- 
 his record of intelligence and good conduct justifies the commandant 
 of the disciplinary barracks in so recommending; and hundreds, if 
 not thousands, of offenders have been so restored since the beginning 
 of tin' war. 
 
 I can not forbear, at this moment, to cite as an illustration an 
 incident recently told by the commandant of the Fort Leavenworth 
 Barracks, while attending the conference, lately held in your oflice 
 on prison discipline. He cited the case of an enlisted man who had 
 been sentenced to two years for desertion. Arriving at the discipli- 
 nary barracks on March 8, 1916, he soon acknowledged the error of 
 his former conduct, went into the disciplinary battalion, and was 
 restored to duty within nine months; was assigned to the Sixty 
 fourth Infantry at El Paso, became successively corporal, battalion 
 sergeant major, and regimental sergeant major; landed in France 
 March 15, 1918; anxious to get into the fighting, he began again, at 
 his own request, at the bottom, as private in another unit; was 
 made sergeant and fought at Chateau-Thierry hi July, 1918; was 
 sent to an officers' training camp, commissioned as second lieu-
 
 MILITARY JUSTICE DURING THE WAR. 19 
 
 tenant on October 1, 1918, was promoted to be first lieutenant on 
 October 28, and ended on armistice day in command of Company 
 L, One hundred and thirty-eighth Infantry. He wrote to the Com- 
 mandant a few months ago, recounting his history, and ending thus: 
 ''There is only one question which I have to ask: Do you consider 
 that I have made a success?" And yet the entire period of time 
 which had elapsed since his original sentence was less than three 
 years. In other words, though sentenced for a period of two years, 
 he had been released from confinement, restored to duty, and traveled 
 up through the grades of noncommissioned officer and had earned 
 promotion through two grades of the commissioned officer, and 
 occupied an honorable status in the Army, within a few months 
 after the nominal period of his original sentence had expired. 
 
 This incident illustrates somewhat prematurely what I shall have 
 later to say about the length of some of these apparently severe 
 sentences. But the incident here illustrates what I am concerned 
 to emphasize, viz., that military justice possesses in its indeterminate 
 sentence and its probationary methods a system that is in advance 
 of that of probably any State of the Union. I am given to believe 
 that very few of our States yet possess a law authorizing this indeter- 
 minate sentence with no minimum. Our disciplinary barracks should 
 indeed be thought of as a reform school, rather than a prison; it 
 corresponds to the term "industrial school" as used in some States. 
 And I need hardly point out that the dsciplinary barracks at Fort 
 Leavenworth are totally distinct from the United States Penitentiary 
 at Leavenworth. And I remember that you yourself recently stated 
 informally at the above mentioned conference of officials that in 
 your opinion the disciplinary barracks at Fort Leavenworth was the 
 best penal institution in the United States. Without claiming any 
 personal credit for its excellent administration, I must here, as 
 some sort of proof of my own deep and long-standing interest in 
 enlightened military justice, take the liberty of reminding you that 
 the probationary system, as exemplified at the disciplinary barracks, 
 was initiated in 1913, on my own personal recommendation, two 
 years after my first appointment as Judge Advocate General; and 
 that the act of March 4, 1915, which transformed the formerly so- 
 called United States military prison at Fort Leavenworth into the 
 United States disciplinary barracks, and organized the modem 
 system of probationary detention for military offenders, was drafted 
 at my instance. Space does not permit me to describe more fully 
 its methods of vocational training and of psychological and psychia- 
 tric study and attention given to all prisoners there confined. I will 
 only mention that Maj. King, now Lieut. Col. King, who was for a 
 long time stationed at the Fort Leavenworth barracks, and whose 
 genius I encouraged and supported in applying his practical methods,
 
 20 MILITARY JVSTICK WRIN; THK WAR. 
 
 is an officer (f (lie Regular Army <>f the l"nited .md that the 
 
 elaborate psychiatric attention given to military offenders sent 
 there for detention is not paralleled, so far as I am aware, in any of 
 the civilian penitentiaries now administered by the Federal Cn.veni- 
 ment, nor at most of the State penitentiaries. 
 
 This much ought in justice to be placed here on record, as informa- 
 tion douhtless new to the intelligent American public, and yet calcu- 
 lated to as-i-t in maintaining that public confidence in the military 
 penal system to which it is justly entitled. 
 
 2. TIIAT THE MILITARY CRIMINAL CODE ITSELF is NOT MOD- 
 ERN AND E-NLHJUTKNED, BUT IS AN ARCHAIC CODE WHICH SYS- 
 TEMATICALLY BELONGS TO MEDIEVAL TIMES. 
 
 Of this statement I can only remark that it is baseless. Those 
 who have ignorantly repeated the statement may be perhaps extenu- 
 ated for this utterance to the American people of a gross slander, 
 not only upon the War Department and the military system, but 
 also upon the Congress which so conscientiously revised the military 
 code in 1916. But though extenuated they can not be exonerated; 
 for the entire story, so plain that anyone can read, is contained in 
 the introductory six pages to the Manual for Courts-Martial pub- 
 lished in November, 1916, and printed with everyone of the 250,000 
 copies that have been issued since that date. Those introductory pages 
 state the entire history of the Articles of War, or Military Code; explain 
 the revision of 1874, and enumerate the most fundamental of the changes 
 introduced in the thorough revision of 1916. That introduction, how- 
 ever, does not state, and I will now add, that the revision of 1916 was 
 pending in draft for four years before the Houses of Congress; that the 
 draft was prepared in my office shortly after my appointment as Judge 
 Advocate General; that it was founded on the most exhaustive con- 
 sideration of the entire military code, as well as on a thorough com- 
 parison with the modern criminal law and its progressive tendencies; 
 and that the hearings before the Military Affairs Committee (S. 
 Kept. 229, 63d Cong., 2d sess., Feb. 6, 1914) showed the most 
 conscientious discrimination of even- detail; and that the testimony 
 iil Is a volume of 146 pages. 
 
 The military criminal code of 1916 no more deserves the term 
 "archaic " than the Revised Statutes of the United States under which 
 the Federal courts since 1878 administered civil justice; and it is 
 nearly 40 years later than the civil Revised Statutes. It represents 
 the result of the most conscientious and constructive thought which 
 could be brought to bear by the combined energies of the War De- 
 partment and of the Congress of the United States in the year 1916. 
 
 That the experiences of this great wr.r, with all its novel condi- 
 tions, multiplying forty-fold the size of our military forces should
 
 MILITARY JUSTICE DURING THE WAR. 21 
 
 have revealed nothing in the way of new lessons for improvement, 
 is not for a moment to be asserted. In the light of that experience, 
 which subjected the military code to a tremendous and unprece- 
 dented test, I readily admit that certain improvements, limited in 
 number, have been demonstrated to be worth while introducing, and 
 I shall conclude this letter with a suggestion of those improvements. 
 But the statement repeatedly made, and published far and wide, that 
 the military code of 1916 is "an archaic code which systematically 
 belongs to medieval times" and does not "belong to this modern 
 enlightened period," but rather "to the England of 200 years 
 ago, whose criminal code of that time was marked by civil harsh- 
 ness and brutality," is not only a cruel and dangerous slander, 
 but is nothing less than a reflection upon the Congress which so con- 
 scientiously consummated that great task. 
 
 3. THAT A SOLDIER MAY BE PUT ON TRIAL BY A COMMAND- 
 ING OFFICER'S ARBITRARY DISCRETION, WITHOUT ANY PRE- 
 LIMINARY INQUIRY INTO THE PROBABILITY OF THE CHARGE. 
 
 Every system of penal justice has some method of insuring the 
 exercise of caution by a responsible officer in scrutinizing an accu- 
 sation before an accused is put to the necessity of defending himself 
 by a formal trial. The traditional method inherited by us, in civilian 
 justice, for serious offenses, is the presentment of a grand jury. This 
 method has now proved cumbrous and ineffective; it has been aban- 
 doned in perhaps a majority of our States. The modern method of 
 those States is a so-called information by the official State prosecutor, 
 filed after such inquiry as he sees fit to make. This modern American 
 method is the one to which France and other continental nations 
 arrived some centuries ago, about the time when England developed 
 the grand jury instead. This modern American method is also the 
 one used in our courts-martial; it arrived in the Anglo-American 
 military system some centuries ago, said to be by adoption from 
 Scotland, which itself had adopted the French system; for the French 
 were the great military nation of three centuries ago. 
 
 By this Anglo-American military system, some officer must file 
 charges before any soldier can be tried. This protection is invariable. 
 Often the judge advocate, as legal adviser, additionally scrutinizes a 
 serious charge before it is filed. This is exactly the protection given 
 by the State official prosecutor in the modern American method. 
 How essential and thorough is this protection can only be appreciated 
 by perusing the strict terms of the law and regulations. Paragraph 
 62 of the Manual of Courts-Martial reads : 
 
 By the usage of the service all military charges should be formally preferred by 
 that is, authenticated by the signature of a commissioned officer.
 
 22 AIIUTARY Jl'STICi; I.'l'RIXi. TITi: WAR. 
 
 pli 7-") reads: 
 
 Submission of charges. All charges for trial ly court-martial will be prejwred in 
 tripl: : th<- pr'.<icrib'd ch; ;is a first shoot and ii.-ing such :i<Mi' 
 
 sheets of ordinary pap>r a.s are required. They will 1 accompanied 
 
 (a) Except when trial is to ho had by summary court, by a hrn-1" statement of the suh- 
 ttance of all material testimony crpcrled from, each material wifnexs, both those for the 
 prosecution and those for the defense, together v-ith all available and necessary infant' 
 as to any other actual or probable testimony or evidence in the case; and 
 
 (6) In the case of a soldier, by properly authenticated i-vidcnr.- of convictions. if 
 any, of an offense or offenses committed by him during his current enlistment and 
 within one year next preceding the date of the alleged cnminiwion by him of any 
 offenses set forth in the charges. 
 
 They will be forwarded by the oflicer preferring them to the oflicer immediately 
 exercising summary court-martial jurisdiction over the command to whirh the aocuxi 
 belongs, and will by him and by each superior commander into whose hands they 
 may come either bo referred to a court-martial within his jurisdiction for trial, for- 
 warded to the next superior authority exercising court-martial jurisdiction over the 
 command to which the accused belongs or pertains, or otherwise disposed of M 
 cumstanees may apjMar to require. 
 
 Paragraph 70 proceeds: 
 
 Investigation of charges. If the officer immediately evrcisint: .suiniiury co'irt- 
 martial jurisdiction over the command to which the accused belongs or jx-rtaina 
 decides to forward the charges to superior authority, he will, before BO doing, either 
 carefully investigate them himself, or u ill cause an officer other than the offn-fr preferring 
 the charges to invent ignit tli-m (-artfully and to report to him. orally or other irise, the result 
 of guch investigation. The officer investigating the charges will afford to the accused 
 an opportunity to make any statement, offer any evidence, or present any matter in 
 extenuation that he may desire to have considered in connection with the accusation 
 against him. (Sec par. 225 (/. p. 112.) If the accused desires to submit nothing. 
 the indorsement will BO state. In his indorsement forwarding the charges to superior 
 authority the commanding officer will include: (a) The name of the officer who in- 
 vestigated the charges; (ft) the opinion of both such officer and himself as to whether 
 the several charges can be sustained; (c) the substance of such material statement, if 
 any, as the accused may have voluntarily made in connection with the case during 
 the investigation thereof; (d) a summary of the extenuating circumstances, ii any, 
 connected with the case; (/> his recommendation of action to be tak-n. 
 
 It will, therefore, be st-cu that tin- regulations require theMri<-t,M 
 scrutiny by a re>|x>nsil>le oHieer before any arrive* I -an he put on 
 trial by a court-martial. 
 
 Ill one of tile speeches uttered in Congress, occurs the following 
 sentence : 
 
 The comrnandiii!,' officer may. I'ithout any inr^tiydtion of the nrruin*tanct&, order 
 a man tried by court-martial; in the French Army such cases are not sent to trial 
 until investigation can determine whether the man ought to be tried. 
 
 How is it possible for such an assertion to be made, in the face of 
 the law and regulations represented in the quotation above from 
 paragraph 76 of the manual ? The safeguard contained in our manual 
 of military justice stands on exactly the same footing with the safe- 
 guard contained in the modern method of the State prosecutor, and 
 of the French system as cited by the critics.
 
 MILITARY JUSTICE DURING THE WAR. 23 
 
 But whatever may be the law and the regulations, doubtless it 
 may be asserted that the regulations are not obeyed in spirit. This 
 is, in fact, the precise assertion made in one of the congressional 
 utterances and to that assertion I now come. 
 
 4. THAT COMMANDING OFFICERS DO THUS PUT ox TRIAL A 
 NEEDLESSLY LARGE NUMBER OF TRIVIAL CHARGES. 
 
 It has been asserted that commanding officers direct the filing of 
 trivial charges in excessively large numbers. The precise language 
 is: "It is not surprising, under the circumstances, that there are too 
 many trivial cases sent to trial by court -marl ial." 
 
 Let us examine this assertion in the light of the facts of military 
 justice during the past year as shown by the records. 
 
 The United States military forces raised up to November 11, 
 1918, numbered some 4,186,000; of these about 290,000 were already 
 in service at the opening of the war; of whom 127,000 were in the 
 Regular Army. Thus over 90 per cent were new men, fresh from 
 civilian life. It must be taken for certain that their unfamiliarity 
 with military discipline, and the novelty of its rigid restraints, would 
 produce an unusual proportion of minor breaches of discipline. In 
 other words, if commanding officers had been merely as strict and 
 rigorous as with the Regular Army before the war, in pursuing 
 minor breaches of discipline with court-martial charges, the ratio 
 of trials would be at least as great, and presumably far greater, than 
 before the war and the accession of the new army. 
 
 But the facts show, on the contrary, that commanding officers 
 must have been far less strict and rigorous than before. 
 
 Let us take first the serious charges brought before general courts- 
 martial. The printed report of the Judge Advocate General for 
 the fiscal year 1918 shows that the total number of general court- 
 martial trials in the Regular Army of 127,000 in the year ending 
 June, 1917, was 6,200, or about one for every 20 men; while the 
 total in the entire Army for the year ending June, 1918, was less 
 than 12,000, or only one for every 200 men (the military forces on 
 May 31 numbering 2,415,000 and the average for the year not being 
 ascertainable with accuracy); and during the last six months of 
 1918 the total was 7,624, or at the rate per annum of only one for 
 every 275 men (the military forces on November 11, 1918, number- 
 ing 4,185,000). As to special courts-martial, for the lesser offenses, 
 the number in the Regular Army for the year ending June, 1917, 
 was 2,970, or one for every 42 men, while for the year ending June, 
 1918, it was 14,700, or only one for every 165 men on the above 
 annual basis. Moreover, as between the Regular Army and National 
 Guard, and the National Army or new drafted men, the number of 
 general courts-martial for the year ending June, 1918, was 10,363
 
 24 MILITARY JUSTICE DURINO THE WAR. 
 
 for the former, ami only 1,660 for the latter, or one for every 107 
 mm in the Regular Army mi<! National (iuard (inimbering on May 
 :{1, I'.MS, some 1.112,000, and composed in part of -ra-onrd m, 
 but only one in every 785 men for the National Army (numbering 
 on May 31, 1918, some 1,303,000, and composed entirely of n-w 
 drafted men); showing conclusively that commanding officers were 
 mora lenient ami liberal with the men fresh from civilian life. 
 
 Turning now to the ''trivial offensrs referred to in the above utter- 
 ance, they are covered by the summary courts-martial, representing 
 the cxtremeh petty disciplinary penalties. The number of trials for 
 the Regular Army, viz, 48,000 in 1917 (rising from an average of 
 38,000 for 10 years past, due to a proportionate increase in the size of 
 the Regular Army), rose in the year ending ,hme, 1918, to only 
 212,000, or slightly more than four tunes the number, although the 
 ent ire military forces in the year ending June, 1918, rose to 2,415,000, 
 or nineteen times the former size. In short, the petty disciplinary 
 penalties dropped from a ratio of 1 to each 2.7 men to a ratio of 1 to 
 each 1 1.4 men, or a decrease for 1918 to less than one-quarter of that of 
 1917. 
 
 There could be no more conclusive demonstration that command- 
 ing officers, though faced with a situation full of inducement to 
 rigor in enforcing discipline among raw and untrained men, did in fact 
 use remarkable consideration and self-restraint in not resorting to the 
 instrumentalities of courts-martial. The facts show, therefore, pre- 
 cisely the opposite of the conditions asserted on the floor of Congress. 
 
 5. THAT THE COURT-MARTIAL is COMPOSED OF AND THE DE- 
 FK.VSE is CONDUCTED BY MEN NOT ACQUAINTED WITH MILITARY 
 LAW. 
 
 It would perhaps be sufficient in refuting this criticism to point 
 out that the court-martial, though it nominally combines in itself 
 the functions of judge and jury, and though this combination is 
 under military conditions absolutely unavoidable, has nevertheless, 
 as its essential and predominating function, that of a jury of fact. 
 The court-martial listens to the testimony and makes findings of 
 fact based upon the evidence. In our criminal common law it has 
 always been regarded as a disadvantage that the jury should be 
 technically skilled in the law; and it is a well-known practice of all 
 experienced defenders in criminal cases to challenge and exclude 
 from the jury members of the bar. Whether this belief is a sound 
 one, I do not pretend to say; I only point out that the possession of 
 legal knowledge by the jury is at least not considered vital in ordinary 
 eivil justice. In the practice of military justice, the legal knowledge 
 necessary to insure an obedience to the requirements of law as to the 
 composition of court, the procedure, and the definition of the offenses 
 charged is expected to be supplied primarily by the commissioned
 
 MILITARY JUSTICE DURING THE WAR. 25 
 
 judge advocate, who acts as the judicial adviser of the reviewing 
 authority. And the thorough scrutiny and review in the Office of 
 the Judge Advocate General (a review, as already pointed out, more 
 elaborate and thorough than is ordinarily supplied by any civil 
 system) is especially calculated to insure an observance of all the 
 rules of law. As the entire testimony is reported verbatim, including 
 every point of law raised by objections of counsel, and as the applica- 
 tion of all relevant rules of law must lie open to scrutiny on the face 
 of the record, it is obvious that the court-martial's own lack of tech- 
 nical knowledge of law (in so far as it might exist in a given case) is 
 amply made up, and more than made up, by the legal scrutiny sup- 
 plied in the course of automatic appeal already described. 
 
 But in spite of these guaranties of legality for the court's action, 
 the military system none the less takes all possible pains to insure an 
 acquaintance with the law by the members of the tribunal. The 
 entire military code, with an elaborate commentary and an appendix 
 of forms, making a volume of 400 pages, and entitled "A Manual for 
 Courts-Martial," is distributed in abundant quantities throughout 
 the Army and forms a part of every military officer's education. 
 Since 1916 more than 250,000 copies of this manual have been 
 printed and distributed; in the month preceding the armistice in 
 November, 1918, a new edition of 50,000 copies, revised to date, were 
 being distributed throughout cantonments and camps in this country 
 and to the divisions in the theater of war. Every officer of the 
 Regular Army, during his four years in the Military Academy, must 
 pass an examination in the course of military law. Every reserve 
 officer who graduated from a training camp in 1917 and 1918 was 
 equally obliged to study and pass an examination upon the Manual 
 for Courts-Martial. Thus a fan* familiarity with the substantive and 
 the procedural portions of military law is established as a part of every 
 officer's military training. Moreover, the regular duties of almost 
 every officer in active service oblige him to take his turn frequently 
 either as a member of the court or as a judge advocate or as counsel 
 for the defense. Thus there are probably few officers in the service 
 who have not had a greater or less practical experience in the use of 
 the military code, and who have not thus familiarized themselves 
 with the operation of the system which they have already studied in 
 the Manual for Courts-Martial. 
 
 In the closing portion of this letter I am proposing an expedient 
 which will supply an additional guaranty of technical legal knowledge 
 in the composition of the court in cases especially likely to involve 
 serious, difficult, or complex questions of law. Apart from such ex- 
 ceptional cases I am of the firm opinion that, so far as the members 
 of the court-martial can properly need an acquaintance with the 
 military code, they are in fact ordinarily equipped with enough of 
 such knowledge; and that the efficacy of the guaranties for the ob- 
 110755 19 1
 
 26 MILITARY JUSTICE IilT.iNi, Till-. \VAIl. 
 
 nice of such Hllcs of lav . j depend, in the military M'stclH. 
 
 upon the extent of the court-martial's K'gal KM- A\ ledge (for the\ 
 
 :lially jurors of fact), but upon the legal knowledge of the com- 
 miioned (staff) judge advocate, WHO advises the reviewing au- 
 thority, and of the commissioned (staff) judge advocates \vh<> S<TU- 
 tini/.e the record in the Office of the Judge Advocate General hy 
 of automatic appeal. 
 
 6. THAT THE JUDGE ADVOCATK (<>VIUM^ 1 \< o.vcut OISLV 
 THK Fi N( TIOXS OF PROSECUTOR, JITDICIAL Ai>vi>r.i: OF THK 
 COURT, AND DKFKNDKI: OF THK Art i SF.D. 
 
 That ihe position of a judge advocate is a unique one may be 
 conceded. A precise analogy does not exist in the civil system. 
 Tills is because military conditions are not identical with civil condi- 
 tions. But the assertion that the judge advocate combines incon- 
 gruous functions which defeat each other or substantially impair his 
 efficacy as a guardian of the military law must be emphatically 
 denied. 
 
 The staff judge advocate is supposed to supply the professional and 
 technical legal knowledge that is requisite to secure the observance 
 of the law in all stages of the trial. Essentially he is a kind of super- 
 intendent of justice. From beginning to end his duty is to prevent 
 the occurrence of illegalities. In this respect he aids the accused quite 
 as much as he aids the prosecution; he has no more interest in securing 
 a conviction than in securing an acquittal. He is. by his position, 
 as impartial as is the Comptroller of the Troaury, whose principal 
 function is to see that no moneys are paid out except according to 
 law, irrespective of the persons to whom they are to be paid. In 
 practice, during the present war, a commissioned judge adv., 
 (whose rank is never less than that of major or lieutenant colonel) is 
 attached to the staff of each commander of a division or a department 
 or other large organization having a separate zone of jurisdiction. 
 After a court-martial trial is ended and when the record arrives in the 
 hands of the commanding general as reviewing authority, the judge 
 advocate's main function in military justice is exercised; he reviews 
 the record, and advises the commanding general whether the trial 
 has been conducted according to law in every respect; this includes 
 the duty to advise whether the weight of evidence sustains the con- 
 viction, regardless of legal error. In this aspect he i- e cut ially an ap- 
 pellate judge, and it is his duty to enforce the law as fully on behalf 
 of the accused as on the behalf of the Government. The judge ad- 
 vocate thus attached to the division commander's staff has other 
 duties of legal advice, corresponding to those of the Attorney General 
 of the United States as legal adviser of the Government in all civil 
 matters. But in military criminal justice his function is essentially 
 judicial.
 
 MILITARY JUSTICE DURING THE WAR. 27 
 
 The misunderstanding which has led to the above criticism is 
 doubtless based upon a confusion of the staff judge advocate with the 
 trial judge advocate. The latter, who bears the same title, but who 
 is not commissioned as a judge advocate, performs actually the 
 duties of prosecuting attorney in an ordinary criminal case. This 
 trial judge advocate is usually a junior officer and is detailed from 
 any branch of the service (Infantry, Artillery, etc.), but not ordinarily 
 from th e Judge Advocate General's branch ; i. e. . he is not commissioned 
 as a judge advocate, though he may have had legal experience in 
 civil life. He is detailed anew for each separate court which may 
 remain in session for some weeks or months. He therefore usuaUy 
 conducts a series of trials for a certain period in that division. But 
 he is entirely distinct in personality from the staff judge advocate, 
 who later acts as the judicial advisor of the reviewing authority. It 
 may be confidently asserted that (except in a few special cases) no 
 staff judge advocate attached as judicial advisor to the- commanding 
 general has acted during the present war as trial judge advocate 
 (or prosecuting attorney) in a court-martial trial. The few excep- 
 tions to this statement occurred in special cases (such as the Houston 
 riots and murders in 1917) where a staff judge advocate was specially 
 detailed to conduct the prosecution, and where also the accused were 
 aided by counsel consisting of specially detailed officers of high rank 
 and legal experience or by civil counsel of their own choice, but in 
 such case the judge advocate was brought in from a different depart- 
 ment or division. 
 
 If this distinction be kept in mind, viz, the distinction between the 
 staff judge advocate regularly attached as legal advisor to the staff 
 of the reviewing authority, and the trial judge advocate specially 
 detailed for the prosecution of general court-martial trials in the vari- 
 ous units within the division, it will be perceived that these two 
 functions are in practice exercised by different persons. The trial 
 judge advocate does indeed perform the duty of prosecuting attor- 
 ney; he is supposed to conduct the prosecution, not indeed with the 
 ruthless partisanship frequently to be observed in civil prosecuting 
 attorneys, yet with the thoroughness suitable to a proper performance 
 of his duties. But the staff judge advocate, in whose hands the record 
 of the trial subsequently arrives and who reviews the record and 
 advises the reviewing authority as to its legality, is a different per- 
 sonage and is in no way hampered by having formerly acted as 
 prosecuting attorney in the same case. Such has been the universal 
 practice in our Army during the present war. It is believed that 
 this plain statement of facts ought to suffice to remove that natural 
 misapprehension which seems to have been founded on a confusion 
 of the terms. 
 
 The necessity of furnishing some legal advice by a trained military 
 officer on many complex aspects of law and the impracticability of
 
 28 MH.ITAI:Y JUSTICE 1'i'UiNt; Tin: WAI;. 
 
 in the staff Organization more than one oflicer for this 
 purpose dors indeed require, the staff jud^e advocate occasionally 
 to givo legal advice in a composite capacity. Whether the^o few 
 anomalous situations can be. removed, with due regard to the ne 
 
 3 of military organization, is a prohlem that, lias often heen 
 di-cu-sed. On that point it is enough to say that the system which 
 we now possess has substantially stood the test of time and experi- 
 ence. But so far as concerns tin* actual administration of military 
 Criminal justice, it ought to be plainly understood that military 
 law does not tolerate the anomaly of expecting the same man to be 
 
 i appellate judge and prosecutor, and that in the practice of 
 th present war (as above pointed out) the trial judge advocate 
 acting as prosecuting attorney in general courts-martial is u different 
 person from the staff judge advocate regularly attached to the staff 
 of the reviewing authority as a judicial officer and quasi appellate 
 jud<j;e. 
 
 7. THAT SECOND LIEUTENANTS, "KNOWING XOTHIXG or LAW 
 AXD LESS THAN NOTHING OF COUBT-MABTJAL PROCEDURE/' 
 AUK ASSIGNED TO THE DEFENSE OF " ENLISTED MEN CHARGED 
 WITH CAPITAL on On:i:i: MOST SERIOUS OFFENSES." 
 
 In commenting on this criticism I may dispose of one part of it, 
 \r/., the statement that these officers "know nothing of law and less 
 than nothing of court-martial procedure," by referring to what I 
 have already stated, namely, that graduates of every training camp 
 have studied and passed an examination upon the Manual for Courts- 
 Martial, and that, therefore, the above criticism is upon its face 
 groundless. The roster of Army officers during the present war con- 
 tains probably thousands of young men who have been admitted to 
 the bar and enjoyed the benefit of a longer or shorter experience as 
 practitioners. While no direct proof by statistics can be adduced. 
 it is common knowledge that the commanding generals in the 
 assignment of counsel (where the accused does not make his own 
 selection"! have usually sought to utili/.e the services of those officers 
 who have already had legal experience. It would be impracticable 
 to propose that no officer shall be assigned to the defense of an 
 accused mi'' I already qualified as a civilian lawyer. Given 
 
 the composition of the officers' roster, all that can be expected under 
 the circumstances is that commanding generals shall do their utmost 
 to select men of those qualifications, if available within the unit; 
 and I do not for a moment doubt that such was the constant en- 
 voi- of the appointing authorities. 
 
 The other part of this criticism is that in capital or other most 
 serious offenses the defending counsel has been officer of the lowest 
 commissioned rank.
 
 MILITARY JUSTICE DURIXG THE WAR. 29 
 
 In so far as it seems to assert that the defending counsel in cases 
 where a capital sentence was actually imposed have been second 
 lieutenants, the complete facts could only be learned by a lengthy 
 collation of all the records. But of the twenty-one records now 
 available on file, in which a capital sentence was imposed, the de- 
 fending counsel were as follows: In four cases a second lieutenant, 
 in nine cases a first lieutenant, in six cases a captain (aided in three 
 cases by a lieutenant), in one case by a chaplain, and in one case by 
 a major. 
 
 In so far as the assertion refers, not to offenses in which a capital 
 sentence was actually imposed, but in which the offense under the 
 military code is liable to be punished with death, the assertion is to a 
 large extent correct, although misleading. In time of peace all 
 offenses (except one or two heinous ones, such as murder) are strictly 
 limited by a small maximum period of imprisonment, which for 
 strictly military offenses can not exceed 2J years for ordinary deser- 
 tion, and for civil offenses are graded according to the usual civil 
 limitations, such as 10 years for burglary or manslaughter or robbery. 
 But in time of war some military offenses may rise to a degree of 
 danger vital to the safety of the Army, and therefore in time of war 
 the death penalty is reserved in a number of military offenses as a 
 possible maximum penalty. It is, I believe, a fact that the death 
 penalty has been imposed by courts during this war in only ninety-six 
 cases, of which approximately one-half were for military offenses; and 
 that in all of these cases the death penalty for the military offenses 
 was subsequently commuted or remitted. But it remains true that for 
 the principal military offenses the death penalty is expressly author- 
 ized by the Articles of War to be imposed in time of war. In 
 thousands of such offenses the penalty actually imposed (there being 
 no minimum prescribed by the Articles of War) has been only a few 
 months or perhaps a few years of imprisonment. In many of those 
 cases it is true that the defense of the accused has been conducted by 
 officers of the rank of second lieutenants. Just what proportion of 
 cases this represents could not be stated without a complete and 
 special examination of the 20,000 cases of general courts-martial 
 arising since April 6, 1917. 
 
 But assuming that the proportion is a substantial one, I must 
 point out that the situation existing in the camps and in the theatre 
 of war presents almost insuperable obstacles to any other practice. 
 The number of officers available for taking part in military trials is 
 necessarily limited, for the active duties of military preparation and 
 operation are obviously paramount. The main object of the Army is 
 victory, not trials. Moreover, in the composition of the court it is 
 plain that the prime requisite is to procure for the court itself the
 
 30 MILITARY .TL'STU'l. ni'KINi; T1IK WAK. 
 
 most experienced officers of adequate rank a-; a guarantee for tho 
 \\isdom of their judgment. Having regard for "both the>c considn .1 
 lions, it therefore becomes a matter of great difficulty, if not impossi- 
 bility, to secure for the conduct of the defense officers of equally 
 high rank with the court. It is not to be denied thai, if it were 
 feasible in every case to assign for the defense an officer of equal 
 rank with the senior officer sitting upon the court, this would be a 
 desirable measure. But no one who has any acquaintance at all 
 with conditions in the theatre of war could suppose for a moment 
 that this is practicable. Even as it is, the organization of co; 
 martial makes already a serious drain on the efficiency of the strictly 
 combatant work of the organization. The problem is a difficult one. 
 It may be that some means can bo devised for strengthening sys- 
 tematically the conduct of tbe defense in courts-martial in re> 
 to the rank and experience of the officers so assigned. But that 
 under the present war conditions it was feasible to obtain officers 
 higher rank in any considerable number must be denied. 
 Moreover, it is at this point that the military system offers a guar- 
 / antee (not found in the civil system) of protection against the conse- 
 quences of such inadequate defenses as may from time to time be 
 \ found. The system of automatic appeals, already described, and the 
 \ thorough scrutiny of the record given in the Office of the Judge 
 Advocate General may be relied upon to supply that protection which 
 in civil courts is usually given only by the skilled scrutiny of counsel 
 for defense in the trial. Whatever point of law might have been 
 made for accused's benefit by counsel's objection, and has failed to be 
 made through his ignorance, can be and is habitually detected and 
 enforced during this appellate scrutiny. The civil doctrine of utiliz- 
 ing only points raised by counsel's exceptions has no place in military 
 appellate procedure. The officers of the Judge Advocate General's 
 Office, as already shown above, scrutinizes the record and insure the 
 observance of those fundamental rules of law which ordinarily are 
 watched over by counsel for defense, and if such rules of law are 
 found not to have been observed the record is disapproved for legal 
 error, regardless of whether counsel for defense took notice of it or 
 not. Virtually this appellate review performs over again the func- 
 tions of counsel for the defense, and, not only in technical duty but 
 in actual spirit, this appellate review seeks to make good those de- 
 ficiencies of defense which may become obvious to the experienced 
 scrutiny of the appellate officer. It is in this appellate review that 
 I find the most satisfactory assurance that such deficiencies as may 
 have from time to time occurred through the inexperience of officers 
 assigned for the defense have been adequately cured.
 
 MILITARY JUSTICE DURING THE WAR. 31 
 
 8. THAT A PLEA OF GUILTY is KECEIVED FROM AN ACCUSED 
 ON A CHARGE FOR WHICH THE SENTENCE OF DEATH MAY BE 
 IMPOSED. 
 
 I find it difficult to give a complete statement of facts in answer 
 to this criticism, because a complete answer would require an exami- 
 nation of all the 20,000 .records of general courts-martial since April 
 6, 1917, and such a complete examination can not be made in the 
 time alloted me. 
 
 In what proportion of cases a pica of guilty has been received, and 
 in what fraction of that proportion this offense has been one for 
 which the death penalty might have been imposed, although not 
 actually imposed, is impossible to say; but I firmly believe that the 
 percentage is a small one. The common instincts of fairness and 
 justice which form the motive for such a criticism are equally enter- 
 tained by the same officers, taken recently from civilian life, who sit 
 upon the courts as judges. 
 
 But if it be meant in the above assertion that when a plea of guilty 
 has been received it has been customary or even frequent to forego 
 the presentation of evidence by the prosecution, I can confidently 
 assert that such cases have not occurred. The prosecution has 
 seldom failed to adduce the requisite evidence ; and whenever it has 
 so failed, the reviewing authority has disapproved the record for such 
 legal error. The Manual for Courts-Martial does not permit (except 
 in the very minor cases) a plea of guilty to exempt a prosecutor from 
 presenting his evidence. I quote from paragraph 154 of the Manual, 
 page 72; it is obvious that if the injunctions of the Manual are 
 observed (and the records show that they have been) a plea of guilty 
 does not signify that the circumstances of the case were not thor- 
 oughly examined, with a view to ascertaining both the exact effect 
 of the plea as well as the extenuating circumstances which might 
 affect the sentence : 
 
 In cases where the punishment is discretionary, a full knowledge of the circum- 
 stances attending the offense is essential to the court in measuring the punishment 
 and to the reviewing authority on the sentence. In cases where the punishment is 
 mandatory, a full knowlegde of the attendant circumstances is necessary to the review- 
 ing authority to enable him to comprehend the entire case and correctly judge whether 
 the sentence should be approved or disapproved or clemency granted. The court 
 should therefore take evidence after a pka of guilty, except when the specification is so 
 descriptive as to disclose all the circumstances of mitigation or aggravation. When 
 evidence is taken after a plea of "guilty," the witnesses may be cross-examined, evidence 
 may be produced to rebut their testimony, and the court may be addressed by the prosecution 
 or defense on the merits of the evidence and in extenuation of the offense or in mitigation 
 of punishment. After a plea of guilty, the accused ivill always be given an opportunity 
 to offer evidence in mitigation of the offense charged, if he desires to do so. 
 
 In each case tried by a general court-martial in which the accused enters a plea of 
 guilty in whole or in part as to any charge or specification the president of the court 
 shall explain to him as to that part:
 
 MILITAPY JUSTICE i.-rr.iNG Tin: WAR. 
 
 Virtt. Tln> various elements which constitute tin 1 offense charred, as set forth in 
 Chapter XVII. defining the punitive articles of war; and 
 
 Second. The maximum punishment which may be adjudged l.y ihe court f<-r the 
 offense to which In- has pleaded guilty. 
 
 The accused will tlien be asked whether lie fully under B) by pleading 
 
 guilty to such a charge or specification he admits having committed all tlie elements 
 of the crime or offense charged and that he may be punished as stated. If he replies in 
 the affirmative, the plea of guilty will stand; otherwise a plea of not guilty will be 
 nterod. The explanation of the president and the reply of the accused thereto shall 
 appear in the record. The pame rule will apply in cases tried by special court-martial 
 when the evidence heard is made of record. 
 
 When the accused pleads "guilty" and, without any evidence being introduced, 
 makes a statement inconsistent with his plea, the statement and plea will bo con- 
 sidered together, and if guilt is not conclusively admitted the court u*ill direct the entry 
 of a plea of "not guilty" and proceed to try the case on the general issue thus made. The 
 most frequent instances of inconsistency are in cases involving a specific intent, as 
 in desertion, larceny, etc. In such cases, where after a plea of guilty the accused 
 makes a statement, the latter should be carefully scrutinized by the court, and if in 
 the case of desertion in any part there is a statement that the accused had no intention 
 of remaining away, that he exixvted to return when he had earned some money, or 
 that when arrested he was on his way back to his organization, etc.. or, in the case of 
 larceny, that he intended to return the property alleged to have been stolen, etc., 
 the court should direct the entry of a plea of " not guilty." but the criminality of an intent 
 once formed is not affected by a subsequent change of intent. 
 
 9. THAT COMMANDING (ii.NKKM.s. As REVIEWING Ai TIIORI- 
 TIES, SEND BA< K FOR RECONSIDERATION JUDGMENTS or AC- 
 QUITTAL. 
 
 This power undoubtedly does exist; and it is occasionally c \cn-ised. 
 But only a brief explanation will be needed to show that it by no 
 means signifies (as the criticism would imply) a subjection of the 
 accused to injustice, by placing the arbitrary discretion of the com- 
 manding officer outside and above the guaranties of lawful procedure. 
 
 The reviewing authority, i. e., ordinarily the commanding general 
 who has convened the court, represents essentially a first appellate 
 stage. No sentence of court-martial can be carried into execution 
 until it lias been approved by the reviewing authority, i. e., neither 
 acquittal nor conviction is effective until the reviewing authority has 
 scrutinized the record and given it approval. The very object of 
 (his institution is to secure the due application of the law, and to 
 surround the accused with an additional protection independent of 
 tin* trial court. This power to approve or disapprove a finding is 
 given great flexibility by the Articles of War; it includes the power 
 to approve a finding of guilty of a lesser offense and the power to 
 approve or disapprove the whole or any part of the sentence. In 
 this respect the military appellate code differs from the usual civil 
 code. Incidentally, this power to disapprove includes the power to 
 disapprove a sentence of acquittal and to return the record for recon- 
 sideration by the court. But, intrinsically, nothing more is here
 
 MILITARY JUSTICE DURING THE WAR. 33 
 
 implied than the court is to reconvene and reconsider its judgment 
 freely and independently. It is in no sense a measure which subjects 
 the court-martial to the command of the reviewing authority in fram- 
 ing the tenor of its judgment upon such reconsideration; for the court 
 is, under the law, entirely at liberty to adhere to its original decision. 
 
 That this power is a useful one, and that it is not in fact in any 
 appreciable number of cases so exercised as to amount to an abuse 
 of the commanding general's military prestige, will, I think, appear 
 from the figures to be gathered from the records. In the first place, 
 the power is exercised in the vast majority of cases solely for the 
 purpose of making formal corrections of the record; for example, to 
 enable the fact to be shown, if it was a fact, that a certain member of 
 the court was present or was qualified or that a witness was sworn, 
 or the like formal correction which will make the record of the trial 
 correspond to the facts. In the second place, the exercise of the 
 power in cases of an initial judgment of acquittal has been rare 
 indeed; and in those few cases the trial court, far from exhibiting a 
 supple obedience to the supposed hint of the commanding officer has, 
 in the great majority of cases, adhered to its original judgment. 
 
 For the purpose of ascertaining the facts, an examination was 
 recently made in my office of 1,000 cases (taking the first thousand as 
 they came in the files) thus returned by reviewing authorities to trial 
 courts for revision. Out of these 1,000 cases, the instances in which 
 the original judgment was one of acquittal numbered 95. Of these 
 95 acquittals, 39 were returned only for formal corrections. Of the 
 remaining 56, the court adhered to its original acquittal in 38 cases; 
 and in only 18 cases was the judgment of acquittal revoked upon 
 reconsideration and the accused found guilty of any offense. It 
 seems plain, therefore, that in no appreciable number of cases has 
 the exercise of this power resulted in a change of verdict upon recon- 
 sideration; and it would be going further than any natural pre- 
 sumption would permit us, if we were to infer that those changes 
 involved substantial injustice to the accused. My own experience 
 in the field can recall more than one case in which the verdict of 
 acquittal was notoriously unsound, and in which the action of the 
 commanding general in returning the case furnished a needed oppor- 
 tunity for doing full justice in the case. 
 
 But even though the power is a useful one, and even though the 
 facts show that it is seldom exercised in cases permitting an inference 
 that possible injustice was done, and even though the facts demon- 
 strate that the power does not necessarily signify a subjection of the 
 court-martial to the will of the commanding general, nevertheless it 
 can not be denied that the practice differs radically, from the tradi- 
 tions of civil justice. Whether the practice in civil justice is not too
 
 34 MILITARY .TU.STKK I'URIXO THK WAR. 
 
 scrupulous ill favor of the accused, and whether the future may not 
 rather witness some change of civil practice in the direct ion of the 
 traditional military practice, I will not attempt to say. But the 
 present military practice is ono which on first impression is repugnant 
 to tho accustomed methods in ciyil trials, and for that reason I am 
 ready to concede that the time has come to approximate the two 
 methods. In the British system, that change was made some \ 
 hcfore the onset of the present war. I am reudy to recommend a 
 similar change in our own practice. Although the power is a, useful 
 one, nevertheless, on the other hand, it does not appear that it is a 
 necessary or fundamental one to the maintenance of military disci- 
 pline; and in that situation the solution may well he to assimilate 
 the practice as nearly as may be to the usual civil practice. This 
 would mean that wherever the initial judgment is one of acquittal 
 (either of the whole offense or of an} r particular charge), the reviewing 
 authority should not have power to disapprove the finding of not 
 guilty; and that, for the same reason, the reviewing authority 
 should not have the power to revise a sentence upward. 
 
 10. THAT THK JUDGMENT OF THE COURT is KEPT SECEET 
 UNTIL AFTER THE ACTION OF THE REVIEWING AUTHORITY is 
 TAKEN, EVEN WHEN THE INITIAL JUDGMENT is AN ACQUITTAL. 
 
 It is obvious that the rule upon which this criticism is founded is 
 a natural consequence of the rule just commented upon, viz, that 
 commanding generals as reviewing authorities may send back cases 
 for reconsideration by the court even after a judgment of acquittal. 
 If the initial judgment of the trial court is subject to change by the 
 reviewing authority, it is obvious that its tenor should not be dis- 
 closed until after the reviewing authority has acted and has so noti- 
 fied the trial court. If, therefore, the above rule is to be changed it 
 would follow that the present rule should also be changed, for the 
 one depends naturally upon the other. In view of what has been 
 said above as to the proposed alteration of the rule permitting the 
 reviewing authority to correct and change a judgment of the trial 
 court,! frankly admit that the corresponding change should be made 
 in the present rule, and that upon a judgment of acquittal, which 
 would therefore be final and not subject to change upon review, there 
 is no reason why an immediate announcement should not be made, 
 precisely as in the case of the verdict of an ordinary civil jury. I am 
 pointing out that the rule here criticized is merely a corollary of the 
 other rule, and that its maintenance under the system hitherto in 
 force has therefore not been subject to criticism.
 
 MILITARY JUSTICE DURING THE WAR. 35 
 
 11. THAT THE SENTENCES IMPOSED BY COURTS-MARTIAL ARE 
 AS A RULE EXCESSIVELY SEVERE. 
 
 In considering the severity of sentences (and this topic has been the 
 main theme of the criticisms uttered on the floor of Congress) I must 
 make my comments in the following order: 
 
 (a) The sentences as they have actually been imposed: 
 
 (&) The reasons for those sentences; and 
 
 (c) The measures now taken to give proper mitigation or re- 
 mission of sentences. 
 
 (a) In considering the severity of sentences, it is, of course, neces- 
 sary to examine separately the different offenses, since obviously the 
 appropriate punishment varies widely for offenses of different moral 
 culpability and different danger to military discipline. Space does 
 not permit me here to set forth the facts for all of the offenses and 
 sentences covered by the general courts-martial since April 6. 
 
 I handed to you on February 12, a complete table of data as to the 
 length of sentences, for the period October, 1917, to September, 1918, 
 covering the nine principal military offenses of desertion, absence 
 without leave, sleeping on post, assaulting an officer or a noncom- 
 missioned officer, disobeying an officer or a noncommissioned officer, 
 mutiny, and disobeying a general order or regulation. As this table 
 is too lengthy for inclusion in this letter I shall content myself by 
 taking the three most typical offenses: Desertion, absence without 
 leave, and disobeying an officer. 
 
 (1) Desertion. No one can approach the subject of sentences for 
 desertion in time of war without keeping in mind the solemn and 
 terrible warning recorded expressly for our benefit by Brig. Gen. 
 Oakes, acting assistant provost marshal general for Illinois, as set 
 forth in his report printed in the Report of the Provost Marshal 
 General for the Civil War (Part II, p. 29). In impressive language 
 he lays the following injunction upon us : 
 
 Incalculable evil has resulted from the clemency of the Government toward de- 
 serters. By a merciful severity at the commencement of the war the mischief might 
 have been nipped in the bud, and the crime of desertion could never have reached 
 the gigantic proportions which it attained before the close of the conflict. The people 
 were then ardent and enthusiastic in their loyalty, and would have cheerfully and 
 cordially assented to any measures deemed necessary to the strength and integrity of 
 the Army. They had heard of the ' ' rules and articles of war, ' ' and were fully prepared 
 to see * * * that deserters from the Army would be remorselessly arrested, tried 
 by court-martial, and, if guilty, be forthwith shot to death with musketry. 
 
 This was unquestionably the almost universal attitude of the public mind when 
 hostilities began, and the just expectations of the people should not have been disap- 
 pointed. Arrest, trial, and execution should have been the short, sharp, and decisive 
 fate of the first deserters. * * * The Government was far behind the people in 
 this matter, and so continued, until long and certain impunity had thrown such 
 swarms of deserters and desperadoes into every State that it was then too late to 
 avert the calamity. * * * I state these things so that, if ve have another war.
 
 36 Mii.iTAKY .irsTici: nuiuxt; Tin; WAR. 
 
 Hie G ><jht '. enfi.ive military law, 
 
 strike hard Mows at tin- outset, tour up tin- national mind ul once to a reali/alion that 
 
 and In- sure that such a jmlicy will be. indorsed and i l>y tin- / 
 
 There arc otl. lions to be made in respect to deserters, but the one I have 
 
 already advanced the nonindorsciucnt of the penalties provided by the military 
 r.idr t'er tin- crime of desertion. < ~\*'< -ially at the beginning is, beyond all question, 
 the prand fundamental cause of the unparalleled increase of that dime, and of the 
 inability of district provost marshals. with their whole force of special ;e_-. nt* and 
 detectives, to rid the country of deserters. 
 
 This solemn warning was naturally in our minds ;it the opening 
 of the present war. Bui, in spile, of ils urgency, it was decided to 
 exhibit our faith in the American people, and to place our trust in 
 thai loyalty and devotion to duty which we felt sure would character- 
 ize the vast majority of to-day's young American manhood. We 
 believed that the "short, sharp, and decisive fate of the first desert- 
 ers" should not be the extreme penalty as urged by Gen. Oakes. 
 And the view was generally accepted in the Army that terms of 
 imprisonment should be ordinarily deemed the adequate repressive 
 measure for the few who might need it. And it is a fact that of the 
 (approximately) 3,000 convictions for desertion, during the war, the 
 scnlence of death was imposed in only L' 1 cases. Mid in every such 
 it was commuted or remitted. 
 
 It must, therefore, be kept in mind at the outset that the refusal 
 to adopt the policy of death sentences for desertion was in it* elf a 
 r< imdiation of tlic pollen of extreme severity; and that the practice of 
 limiting desertion sentences to terms of imprisonment is in itself 
 the adoption of a policy of leniency. Reproach for severity must 
 deal with the fact that the policy adopted disregarded both the 
 extreme penalty authorized by Congress and the warnings of the 
 Civil War. 
 
 Turning, then, to the recorded facts, we find in the table that the 
 total number of convictions for desertions for the year October, 
 1917-September, 1918, was 2,025; that the average sentence 
 7.58 years; that nearly 24 per cent of these sentences were for less 
 than '2 A ears; that 64 per cent were for less than 10 years; and 
 only 35.90 per cent were for a greater period than 10 years. The 
 Article of War reads: 
 
 Any perron who deserts shall, if the offense be committed in time of war, suffer 
 . or such other punishment as the court-martial may direct. 
 
 It would seem, therefore, that in point of severity the result of 
 courts-martial sentences for desertion can not be charged with erring 
 on the side of severity. 
 
 You will notice that I do not here attempt to account for the 
 justice of individual cases. Certain of the sentences for 25 years, or 
 even for lesser periods, are open to criticism as excessively severe 
 under the circumstances of the individual case. But it must be
 
 MILITARY JUSTICE DURING THE WAR. 37 
 
 kept in mind that these trials and sentences were found legally valid 
 by the Judge Advocate General's Office; that the only issue of doubt 
 that could arise concerns the quantum of the sentence; and that the 
 scrutiny of the clemency section in the Military Justice Division of 
 the office may be relied upon to detect cases of excessive severity 
 before any excessive portion of such a sentence has been served. But 
 the excessive severity of an individual sentence is not the question 
 here; that question would call for the scrutiny of the particular case. 
 The question here is of general conditions. What the above figures 
 show in respect to general conditions, or the trend of conditions, is 
 that the practice has been one of relatively moderate penalties instead 
 of the severest one permissible under the law. 
 
 (2) Absence without leave. Absence without leave is an offense 
 which represents, in many instances, cases of actual desertion; but, 
 owing to the movements of the military unit and thus the difficulty 
 of obtaining the necessary technical proof, the actual deserter is 
 frequently convicted of no more than an absence without leave. It 
 is, therefore, plain that the offense of absence without leave may, 
 upon its circumstances, merit an extremely severe penalty, equal to 
 that of desertion. In time of war this offense may lawfully be pun- 
 ished by any penalty short of death; in time of peace a presidential 
 order limits the maximum penalty to six months' confinement. 
 
 For the year ending September, 1918, the total convictions for this 
 offense number 3,362; the average sentence was 1.59 years (or only 
 three times the small maximum allowed in peace times); 11 per cent 
 of the offenses received no penalty of imprisonment; 67 per cent 
 received a sentence of less than two years imprisonment; and only 
 22 per cent received a penalty of more than two years in prison. 
 When it is remembered, as above pointed out, that this offense is in 
 many cases virtually the offense of an actual deserter, it will be seen 
 that the number of the sentences over two years is not dispropor- 
 tionate to the probable ratio of cases individually calling for the 
 higher penalties. An average sentence of 1.59 years for this offense, 
 committed in time of war, can not be deemed an exhibition of se- 
 verity, where in fact the act of Congress establishing the Articles of 
 War leaves the court-martial absolutely untrammelled (short of the 
 death sentence) in the penalty to be fixed to this offense. 
 
 (3) D'isoleying an officer. The offense of disobeying a superior 
 officer is punishable, under the Articles of War, by ''death or such 
 other punishment as the court-martial may direct." The total num- 
 ber of convictions for this offense was 785; the average sentence was 
 for 4.34 years; 6 per cent of offenses were punished by no imprison- 
 ment; 43.69 were punished by confinement of less than 2 years; and 
 a trifle over 50 per cent were punished by some period greater than 
 2 years, there being one death sentence and 18 sentences for 25
 
 38 MILITARY JUSTICE DURING Till: WAR. 
 
 Years or more, Comparing the absolutely unlimited nature of tho 
 punishment permitted by tho Articles of War to be imposed by tho 
 court-martial, and observing that f>0 per cent of the-e sentences \ 
 for periods of under 2 years, it can not be that the tribunal:- appear 
 to bo seeking to exerci-e the maximnin of severity allowable, but 
 rather the contrary. 
 
 Moreover, in interpret ing these sentence.-, for tiie ofTen-e of dis- 
 obedience of an oflieer. it is worth while to remind the civilian public 
 that little or nothing turns upon the nature of the command itself 
 which is disobeyed. Much has been made in public discussion of 
 one or two instances in which the subject of command was apparently 
 of trivial consequence; for example, a command to an enlisted man 
 to give up some tobacco unlawfully in his possession, or a command 
 to clean a gun. But in military life, obviously it is not the thing 
 commanded that is material; it is the act of deliberate d ice. 
 
 Deliberate disobedience in one thing, if unchecked, means deliberate 
 disobedience in any and all things. It was a condition of deliberate 
 disobedience, in small and great things alike, which caused the Rus- 
 sian Army to melt away and transformed Russia into the home of 
 Bolshevism. The military officer does not rule by violence, but by 
 moral sway. He is able to organize his men upon the battlefield 
 only because he can be confident that every command of his in mat- 
 ters great or small will result in instant and unquestioned obedience. 
 Hence, an act of military disobedience is a symptom as alarming to 
 the military commander as is the first incipient cancer cell to the 
 surgeon a warning that the knife must soon be applied. The Wai- 
 Department must invoke and expect the sympathy and support of 
 an enlightened public in realizing that the offense of disobedien* 
 to be ranked among the cardinal offenses of the soldier and recj' 
 the most rigid measures for its repression. 
 
 In the foregoing comments, it will be noticed that, since a charge 
 of excessive severity implies tho habitual resort to a maximum 
 standard allowable under the law, the standard here to be taken mu.-l 
 of necessity be the standard set by the Articles of War as adopted by 
 the act of Congress. Judging by this standard, the practices of the 
 court-martial, to any candid observer, must be vindicated from the 
 charge of the habitual employment of severity; rather have they pro- 
 ceeded in a direction of a lenient use of their discretion. 
 
 I must freely admit that, in any discussion of the severity of sen- 
 tences, notions of severity are so widely different that it will be 
 hopeless to satisfy the standards of all varieties of critics. There 
 exists to-day, in some minds apparently, n sentimentality towards 
 offenders of every sort, which we could never expect to satisfy without 
 a virtual undermining of the entire criminal law, whether military or 
 civil. I received recently a letter, complaining of the " inhuman and 
 outrageous punishments administered for trivial matters"; this ex-
 
 MILITARY JUSTICE DURING THE WAR. 39 
 
 pressioii being used of a court-martial sentence of ten years for con- 
 spiracy to rob. In the particular case, four soldiers, out on leave in 
 a city adjacent to a military camp, assaulted with a pistol and 
 violently beat a fellow soldier at midnight in a vacant lot, for the 
 purpose of obtaining his money by force; and upon his raising an 
 outcry they ran away, and his wounds were attended to by the 
 military police. To apply the term "trivial" to this act of cowardly 
 violence, and the term "inhuman" to the sentence of ten years, indi- 
 cates such a singular standard of moral judgment that it would bo 
 impossible to reach an agreement, in estimating the severity of the 
 sentence, with those who are willing to acknowledge such a standard 
 of judgment. I am assuming, in what I have now to say, that the 
 idea of severity is always to be interpreted in the light of a rational 
 standard of moral judgment based upon the danger and heinousness 
 of the offender's act in comparison with the sentence imposed. 
 
 I close this comment with a forceful quotation from a recent 
 editorial in a leading daily journal: 
 
 When a soldier goes absent "without leave, deserts his post of duty to see a dying 
 father, he does so because his own personal desires are stronger than his sense of 
 responsibility to his country. It may be a hard thing to give up seeing a dying father, 
 but it is a harder thing to give up running away in the face of the enemy. 
 
 That is what military justice is about. The sole preoccupation of any army, wher- 
 ever it is, is to train its men and keep them trained to obey the will of the commander 
 under the most trying possible circumstances and serve the will of the Nation. If 
 disobedience had been tolerated in the United States, our Army in Europe would not 
 have captured the St. Mihiel salient nor fought six weeks in the Argonne. 
 
 An army to be successful in the field must, from the moment it begins to train at 
 home, have absolute control of its discipline. 
 
 (&) The question may still be asked, however, whether even for 
 these serious military offenses those sentences greater than, let us 
 say, 5 or 10 years were necessary for the morale of the Army. 
 
 I must premise by pointing out first that these long sentences 
 represent only a minute fraction in the mass of court-martial sen- 
 tences, and, secondly, that the long periods of years named in those 
 sentences were only maximum, and were therefore nominal only. 
 . As to the first point, I call attention to the total number of sen- 
 tences for a year, including trials in all grades of courts. These were 
 approximately 240,000, of which the military offenses were at least 
 200,000 in round numbers. In these 200,000 sentences the vast 
 majority, probably about 185,000, were imposed in summary courts, 
 and those could not by law exceed three months. Another 10,000, 
 approximately, were in special courts, and those could not have ex- 
 ceeded six months. Some 7,000 were in general courts, the only 
 court authorized to impose a sentence of higher than six months. 
 Now, for the year October 1, 1917, to September 30, 1918, the records 
 of this office show that there were only 532 sentences for a period 
 of 15 years or more; that is, less than three-tenths of 1 per cent of 
 the over 200,000 trials for military offenses. And there were only 
 about 2 ; 200 sentences for five years or more, or a trifle more than 1
 
 40 MII.ITAKV .irsTici: i-rnixc THK WAR. 
 
 per cent of the 200,000 sentences for military offenses. If, therefore. 
 anything is found to be wrong about this group of severe sentei, 
 the wrongness can only affect a very small fractional corner in the 
 area of military justice. There may be at tliis moment 532 cases 
 of smallpox in the population of the metropolis of Manhattan, with 
 more than 4,000,000 inhabitants; but this does not signify that 
 there is any doubt as to the general healthy immunity of the metrop- 
 olis against that plague. 
 
 The second point above mentioned is that these long periods of 
 years named in the sentences were in effect nominal only. There 
 being no minimum number of years, the offender may be release.! 
 at any time by reduction or remission of sentence on recommenda- 
 tion of the clemency section of this office, where the offense is a 
 purely military one. That this is not merely a possibility, but an 
 actuality, will be seen from the fact later to be cited, that nearly 
 10 per cent of the- 12,000 sentences for the last calendar year have 
 in fact been selected for remission or mitigation, and that in those 
 sentences an average of 90 per cent of the total periods has been 
 cut off; for example, of the 2,035 sentences for desertion, some 577, 
 averaging a sentence of 3.80 years, were selected for reduction, and 
 this average was reduced, on the recommendation of my office, to 
 an average of three months. In other words, the imposition of a 
 2.")-year sentence does not signify that 25 years of a sentence will be 
 served; the experience of the year 1918 having shown that of the sen- 
 tences selected for reduction only 10 per cent of the term is actually 
 served. It is in this sense that I refer to these long-term figures 
 for the maximum duration as merely nominal. 
 
 As an illustration conveniently at hand, let me take the four cases 
 cited by Senator Chamberlain as illustrating excessive severity of 
 court-martial sentences; he cited the case of a 25 years' sentence for 
 absence without leave, another of 15 years for the same offense, and 
 two cases of 10 years for sleeping on post. And yet the records of 
 this office show that in two of these four cases the Judge Advocate 
 General had advised that there was no legal objection to their restora- 
 tion to duty, on December 10 and December 12, 1918, respectively, 
 two weeks or more prior to the date of the Senator's speech in Con- 
 -; and the records of The Adjutant General's Office show these 
 men actually restored to duty on December 23, 1918, one full week 
 before the day when the Senator arose to complain of the severity of 
 these cases; and all of this in the course of the normal operation of the 
 system. These illustrations point to what I mean in saying that the 
 long term named in the sentence is merely nominal, in that the 
 offender may be, and in practice frequently is, restored to duty at an 
 early period of a few months or more, totally regardless of the long 
 period named in the sentence. 
 
 Why then (it may be asked) was it necessary or wise to name such 
 long maximum terms in the sentence? The answer here must be
 
 MILITARY JUSTICE DURING THE WAR, 41 
 
 sought in the necessities of discipline while our Army was being 
 raised, and in the just apprehensions of responsible officers over the 
 fulfillment of their huge task. Half a million men were taken by 
 draft in 1917, fresh from the associations of civil life; nearly another 
 half million were entering by enlistment ; and before three-quarters of 
 the year 1918 had passed nearly four million men had been taken 
 into the Army and were in the process of training. This training was 
 conducted under circumstances of urgent haste never before known 
 in our history for the tide of battle was going against the allies, and 
 the anxieties of the civilized world awaited breathlessly the arrival of 
 our troops. To make good soldiers out of this huge and undisciplined 
 mass, in an average period of three or four months for each contingent, 
 was one of the most extraordinary feats ever accomplished in the 
 history of military training ; and it has testified in the highest degree 
 to the adaptability and versatility of the American character. But 
 it required urgent haste, and while it was going on the curtain was 
 not raised upon the future, and the glorious results which now lie 
 before us were still in the realm, of doubt. 
 
 Our officers, charged with the duty of bringing these undisciplined 
 men into immediate readiness for battle, were weighted with anxiety, 
 day and night, at the possibilities of failure. The one imperative 
 necessity was to inculcate the sentiment of obedience obedience 
 instant and absolute. For those few and they were less than 15,000 
 out of 4,000,000 who committed serious military offenses, and thus 
 showed themselves recalcitrant to the requirements of military 
 discipline, some fonn of absolute moral compulsion was necessary. 
 Whether that moral compulsion ought to take the shape of a sen- 
 tence of 2 years or 10 years or 20 years was a matter about which it 
 would have been dangerous to speculate. The situation called for 
 an absolute certainty. The sentences must be such that they 
 imported for any disobediently disposed soldier a penalty which 
 would be absolutely compelling. When those officers selected occa- 
 sionally (and the percentage of cases was extremely small) a long- 
 term sentence which should have this imperative significance, they 
 knew that this was only a maximum term and that there was no 
 minimum, and that an early release would be easily earned by those 
 who deserved it. And I can not bring myself to-day, nor, I think, 
 can any man who will reflect on that situation, to question now the 
 wisdom of their judgment. And I will even go so far as to say that 
 probably none of these officers supposed for a moment that these 
 long terms would ever actually be served. It was their business 
 and duty to impose a compelling sense of discipline, and they chose 
 those terms which, in their judgment, would do so. And it was not 
 for them to undermine the effect of their discipline by announcing 
 that none of these sentences need be served a moment longer than 
 the exigency of the war required. They knew that, if the danger
 
 42 .MILITAUY .irsTici: nunixc; THK WAR. 
 
 should pa>s and if victory should crown their efforts, the authorities 
 of the Army, and particularly the scrutiny of my ollice, \vould see to 
 it that the sentences were appropriately cut down. And I think it 
 can be safely asserted that, so far as there is anywhere an individual 
 long-term sentence that could have been deemed e\ce ive, the man 
 who received that sentence has not yet served a single day of the 
 exce i\v period. In other words, if an individual injustice was done 
 in the length of period imposed, the injustice was never one which 
 could not he corrected before it became in fact an injustice. 
 
 How thoroughly my office is now undertaking to apply this cor- 
 rective in proper cases I will later mention. But I am concerned 
 now, in these days of international safety and of national demobili- 
 zation, to carry back in retrospect the minds of all reflecting citizens 
 to the period of 1917, when the fate of the world trembled in the 
 balance and the embryo armies of the United States were the hope 
 of civilization for turning that balance in the direction of world 
 rescue. The huge responsibility of preparing these armies almost 
 over night lay upon these men who administered military discipline. 
 JI<>w magnificently they discharged that task has been shown by the 
 results of the battle field. I, in common with all other intelligent 
 citizens, shared their anxieties, and I for one can not now remain 
 silent while they are criticixed for the conscientious exercise of that 
 judgment in applying the necessary measures. Had they failed, they 
 might have been put to the bar to account for themselves. But they 
 succeeded, and in a manner which has commanded the admiration of 
 the world's veteran soldiers. It is easy to be wise after the fact. 
 But hi the light of their superb success let no one now censoriously 
 presume to disparage the soundness of their judgment nor the wisdom 
 of the measures by which they achieved that success. 
 
 (c) I said above that I would conclude this part of my comment 
 by mentioning the measures now practically under way for mitigating 
 and remitting the sentences of courts-martial, in the light of the 
 termination of hostilities and the restoration of the national safety. 
 
 On the 20th of January you approved a recommendation of mine, 
 dated January IS, proposing the institution of a system of review for 
 the purpose of equalizing punishment through recommendations for 
 clemency. A board of three officers was designated by me in the 
 Office of the Judge Advocate General on January 28. This board of 
 officers, with a large number of assistants, is now examining the 
 record of every sentence of courts-martial under which any soldier is 
 now confined in any prison in the United States. The recommenda- 
 tions of this board will go so far as to remit the entire portion not 
 yet served upon a sentence of confinement or to reduce it to such 
 amount as seems suitable to the present situation in view of the 
 necessities of military discipline. It is expected that at least 100 
 cases a d: 1 v will be passed upon by this board. The completion of 
 the work of this board, which can not require more than a few months
 
 MILITARY .irSTH'K 1>1'KIN'(! TJIK WAR. 43 
 
 at the most, will signalize a complete readjustment of all sentences in 
 a manner appropriate to the termination of hostilities and the re- 
 sumption of peace-time requirements for military discipline. It is 
 certain that every sentence that might now be deemed in excess of 
 the necessary period will be duly reviewed and that no soldier now in 
 confinement will serve any period in excess of that just amount, so 
 far as human powers of judgment are equal to this task. 
 
 12. THAT THE SENTENCES IMPOSED BY COURTS-MARTIAL AI:E 
 VARIABLE FOR THE SAME OFFENSE. 
 
 When we come to the question of variability of sentences, we reach 
 a subject which has been the fertile field for complaint and criticism 
 in civil courts for a century past. It is notorious that the independent 
 judgment of different courts and of different juries seems to be char- 
 acterized by the most erratic and whimsical variety. Such has been 
 the constant burden of complaint in civil justice, and it can hardly 
 be hoped that military justice could escape a similar complaint in 
 some degree. On the other hand, it must always be remembered 
 that here the individual circumstances vary so widely that a varia- 
 tion of sentences is perfectly natural, and that the mere variation of 
 figures in itself signifies very little where the individual circumstances 
 remain totally unknown to the critic. Nevertheless a variability of 
 sentences for the same offense is something which naturally excites 
 attention and caution; and it should be the object of appellate au- 
 thorities to equalize the penalties for the same offense where no 
 obvious reason for substantial difference is found. How far the re- 
 visory authority of the Judge Advocate General and the clemency 
 powers of the Secretary of War have been effectual to secure such 
 equalization will be noted later in this letter. At the present the 
 inquiry of fact is whether there has been such variability and at 
 what points it has taken place. 
 
 The table above referred to, and already handed to you, summarizes 
 for the nine principal military offenses the variance of the sentences, 
 first bymonths of the year covered, and secondly by jurisdictional areas 
 from wliich the court-martial records come up for revision. In sum- 
 mary of these variances it is here to be noted that such variances 
 obviously exist; that these variances are not in themselves any more 
 striking than those that are found in the sentences of civil courts, as 
 already shown in the other table submitted to you; that in seeking 
 the possible source of these variances it appears very strikingly that 
 there has been a slight but appreciable increase in the number of 
 higher-period sentences as we come down to the later months of the 
 war; and that, so far as jurisdictional areas are concerned, there have 
 been notable variances which seem in some cases to localize the 
 higher-period sentences for certain offenses in certain specific areas. 
 
 As illustrating the foregoing inferences it will be sufficient here to 
 take the single offense of desertion. Examining it by months it will 
 be noticed that the long-term, sentences of 10 to 15 years, and of 15
 
 44 MILITARY .irSTICK PCKINi; TMK WAR. 
 
 to 2." years and over '." ye.-ir- im-iva-ed -lightly in their ratio to tho 
 whole of the MMitenrrs for the niontli as \ve a||in>a<-h t ho later mouths 
 of tho year under examination. For example, for the months of Oc- 
 tober, 1917, to February, 1918, there were no sentences over 25 years, 
 although the number of convictions increased from 55 to 196 (tho 
 increase, of course, being duo to the much greater ratio in the in- 
 n-eitso of armed forces). But during the months of April to July, 
 \\ ith approximately the same number of convictions, averaging 225, 
 tho number of sentences for over 25 years increased from 4 to 9, to 15, 
 and finally to 33. Apparently, therefore, some conditions in tho 
 Army changed as the months advanced so as to induce this variance 
 in the direction of higher-period sentences. Just what those condi- 
 tions were can not even be the subject of speculation without a very 
 careful inquiry; merely the fact is here pointed out. 
 
 Again, turning to the ']urlsd"ictional areas, we find that the Central De- 
 partment shows about 9 percent of sentences for over 10 years, while 
 the Eastern Department shows only 3 per cent; that the Twenty- 
 eighth Division, having 21 convictions, imposed no sentences in excess 
 of 10 years, while the Eightieth Division, with exactly the same num- 
 ber ot convictions, imposed 14 sentences greater than 10 years. 
 
 As further indicating this variance by jurisdictional areas, a glance 
 at the same table under tho offense of absence without leave, shows 
 that, in the Twenty-eighth Division, which exhibited the above 
 leniency for desertion, the offense of absence Without leave was 
 given a sentence ot under 2 years for 127 out of 140 convictions; 
 while the Eightieth Division, which had shown a large majority of 
 long-term sentences for desertion was, on the other hand, lenient 
 for the offense of absence without leave, imposing 16 sentences of 
 under 2 years, out of 20 convictions. Comparing again the Thirty- 
 Mxth and Thirty-ninth Divisions, with substantially the same num- 
 ber of convictions, viz, about 175, one finds that the former imposed 
 about 20 sentences ot above 10 years, while the other imposed 101 
 sentences above 10 years. This same Thirty-ninth Division had also 
 u-ed a majority of higher period sentences for desertion, whereas 
 the Thirty-sixth Division showed for desertion a record that aver- 
 aged with the other divisions. 
 
 It will be seen, therefore, that in many, if not in most cases, the 
 extreme variances may be traced to difference of practice in the 
 different jurisdictional areas. Just what conditions existed which 
 would justify in the individual cases, or in the general trend of cases, 
 tin's variance between divisions, can hardly be the subject even of 
 hypothesis. But it must be obvious to any candid observer that 
 there do exist wide differences of conditions, not only in the racial 
 and educational make-up of the different camps, but also in the 
 morale and necessities of discipline prevailing in different camps. 
 It is well known that the sentences of civil courts for civil offenses 
 vary widely in the different States. For example, in 1910 (Census
 
 MILITARY JUSTICE DURING THE WAR. 45 
 
 Report, 1910, "Prisoners and Juvenile Delinquents/' p. 50), the 
 percentage of sentences of 10 years or over was 9.7 in the East South 
 Central States, but was only 0.1 in the New England States; in 
 Mississippi, it was 22.51, but in California it was only 2.3. This 
 illustration is mentioned merely to suggest that whenever one dis- 
 covers that variances in sentences have a certain relation to vari- 
 ances in camps or divisions, the subject becomes at once too com- 
 plex for hasty judgment. 
 
 Apart from what is now being done in my office by way of the 
 equalization of sentences by commutation in the way of -clemency, 
 I am only concerned here to point out the facts as they are found hi 
 the records relative to the action of the courls-martial themselves; 
 and to note that such variances (apart from peculiar individual cases) 
 as are revealed in any noticeable amount, seem to be due most largely 
 to differences of conditions in the different camps, divisions, and other 
 jurisdictional areas; and the greatest caution must be exercised before 
 passing judgment upon such variances as inequitable, without being 
 fully familiar with the condilions operating in those places. 
 
 Moreover, I must utter a further caution against the popular pre- 
 sumption that a difference in sentences of different individuals for 
 the same offense signifies necessarily any inequity. Tha individual 
 circumstances differ so widely that the injustice would consist, not in 
 the variability, but in the rigid identity of the same sentence for the 
 same offense in every individual case. This very matter of variation 
 in sentences is one of the triumphs of modern criminal law. One 
 hundred years ago virtually every criminal code of the civilized 
 world was marked by a rigid fixation of penalties for each variety 
 of offense. It was regarded as one of the great objects cf criminal 
 reform in that era to introduce variability of the sentence and adapt 
 it to the circumstances of the individual case. One of the first 
 criminal codes to introduce this reform was that of the State of 
 Louisiana, drafted just a century ago by the great Edward Living- 
 ston, recognized as the most eminent jurist of his day; this code re- 
 ceived the approval of the jurists of the world; and one of its most 
 remarkable features was its recognition of the variability of sen- 
 tences for varying individual circumstances. Ever since that day 
 all progress in criminal codes has included this element in an increas- 
 ing degree. The particular virtue claimed and proved for the inde- 
 terminate sentence, which has now been adopted in probably three- 
 quarters of the States cf our Union, is that it gives full play for the 
 adaptation of the sentence to the individual case. We must, there- 
 fore, always recall that the variability permitted by law is in itself 
 a powerful feature tending to the apportionment of justice according 
 to the circumstances of each case. 
 
 The one complementary element necessary in a criminal code in 
 guarding against too great a variability in the action of different 
 courts is the power of ultimate readjustment by some central tribunal.
 
 46 MILITARY JTSTICK nriUXti TUK WAB. 
 
 In the language of one of the very Senator- who has cri; ii-i^-.I v>in<- 
 of these sentences: 
 
 The sure cure for it all w to have some sort of a tribunal, appdlate or MJJXT- 
 visory, that shall have the power t< innuUit<: rule* ami i-'juuli/o thiwe unjust 
 sentences. * * * 
 
 Precisely this power of recomp&endation is now r\<-n-i-ed, and lon^ 
 has been, by the Judge Advocate General's Office, in its clemmrv 
 section. The explanation of this nctivitv brings me to the next 
 point of criticism. 
 
 13, THAT TII:: Jri><;r. ADVOCATE GENERAL'S OFFICE EITII. r: 
 PARTAKES IN THK AMU-IDE OF SEVERITY OK MAKES NO ATTEMPT 
 TO CHECK IT BY REVISORY ACTION. 
 
 The distinct implication running through the critical remarks above 
 quoted is that there exists no central authority that can check, equal- 
 ize, or correct such severity or variability as may be found to merit 
 such action, and that the Judge Advocate General's Oilice, charged 
 with the duty of revising these court-martial records, either acquiesces 
 in the result of the court-martial sentences as approved by the review- 
 ing authority or makes no attempt to check any excesses by revisory 
 action. 
 
 It is, therefore, necessary to emphasize that the Judge Advocate 
 General's Office not only scrutinizes the court-martial records for the 
 purpose of discovering errors of law and procedure, but also, in the 
 clemency section of the Military Justice Division, occupies itself exclu- 
 sively with the scrutiny of records for the purpose of recommending for 
 remission or mitigation those sentences which are open to question as 
 to severity or inequality. This power has been exercised habitually 
 ever since our entrance into the war, as well as before that date. 
 
 Inquiring into the results to see what the facts show the question 
 presents itself: To what extent has the Judge Advocate General's 
 Office called for a reduction of sentences by a recommendation of 
 clemency to the Secretary of War ? And I note in passing that in no 
 instance, so far as I am informed, has such a recommendation of 
 clemency failed to be approved and given effect by yourself. 
 
 () The extent of such recommendations as to the number of sen- 
 tences is shown in the following summary, covering the clemency recom- 
 mendations for the year 1918, as applied to the sentences from October 
 1, 1917, to September 30, 1918, for the nine principal military offenses: 
 
 Total number of such sentences imposed, 7,624; total number of 
 such sentences selected by the Judge Advocate General's Office for 
 reduction, 947; percentage of selected sentences on all sentences, 
 12.42. I see no reason to doubt that this 12 per cent is ample 
 enough to cover all the individual cases in which an excessive severity 
 would have been apparent on the face of the record. 
 
 The table as placed in your hands shows the reduction in its rela- 
 tion to the sentences of different lengths. The table shows that the 
 largest percentage of reduction occurred in the sentences of medium
 
 MILITARY JUSTICE DURING THE WAS. 47 
 
 length, and that the smallest percentages of reduction occurred in the 
 sentences of shortest and of longest periods. This result is perfectly 
 natural and appropriate. The shortest sentences are those in which 
 there would be the least call for reduction by clemency on the ground 
 of excessive severity. The longest sentences are those in which the 
 reduction on the ground of excessive severity would presumably not 
 bring them to an extremely low period and, therefore, in which the 
 time for recommending such reduction had presumably not arrived. 
 
 (&) How much reduction did this action effect in the total length 
 of all the sentences acted upon ? This will afford some gauge of the 
 thoroughness of the action in the nature of clemency. A table 
 already in your hands shows the number of sentences recommended for 
 reduction, the total years of the original sentences, the total years 
 reduced on recommendation of the Judge Advocate General's Office, 
 and the net years of sentence as actually served; and the figures 
 are given separately for the nine principal military offenses as well as 
 for the total of all offenses, October 1, 1917, to September 30, 1918. 
 
 Referring to the table for details as to the specific offenses, I will 
 point out here merely that for all offenses, military and civil, the total 
 reduction effected was a reduction of 3,876 years out of an original 
 period of 4,331 years, or a reduction of 89 per cent. In other words, 
 action of this office, in effecting reductions in the 1,147 sentences 
 selected on their merits for reduction, cut them down to 10.50 per 
 cent of their original amount. Presenting the same result in another 
 form, the average original sentence, of these 1,147 sentences, was for 
 a period of 3.78 years (or nearly 4 years), and the average sentence 
 served as reduced was only 0.40 of one year, or less than 5 months. 
 
 These figures as to reduction effected in the length of the sentences, 
 demonstrate that the action of this office was a radical one, and must 
 have served to eliminate any excessive severity in those sentences. 
 That the sentences selected for such recommendations of clemency 
 included all of the sentences meriting the term "severe," neither I 
 nor anyone else would be in a position either to affirm or deny with- 
 out an examination of every record. 
 
 How extensive is the scope of reduction now undertaken for all 
 sentences, by the special clemency board recently appointed at your 
 instance, has already been told. 
 
 14. THAT THE ACTION TAKEN IN THE JUDGE ADVOCATE GEN- 
 ERAL'S OFFICE is INEFFECTUAL TO ENFORCE MILITARY LAW AND 
 PROCEDURE, BECAUSE ITS RULINGS Do NOT HAVE THE FORCE 
 OF A SUPREME COURT MANDATE, BUT ARE ONLY RECOMMENDA- 
 TORY, AND ARE EITHER IGNORED BY THE DIVISION COMMANDERS 
 OR VETOED BY THE CHIEF OF STAFF. 
 
 This brings me to the question which has formed the principal 
 theme of recent discussion in Congress ; and I must divide my com- 
 ments under three heads, covering each one as concisely as accuracy 
 will permit: (a) the question of simple fact, i. e., what actually is the
 
 48 MILITARY .IT-TICK IU'RIN't; TITK WAR. 
 
 effect of the Judge Advocate General's notion; (I) the question of 
 legal theory, i. e., what is the extent of his legal powers under existing 
 law; mid (r) what use has recently been made of this question of legal 
 theory by certain parties in disparaging the administration of military 
 justice by the War Department. 
 
 () The simple //>/. s7'// <-f fact. The foregoing exposition of the 
 principles of military law and procedure, as enforced through the 
 appellate system culminating in the advisory action of the Judge 
 Advocate General's Office, is vain and meaninglc-s to some of the 
 critics of our military >\-tein. I find it repeatedly asserted and im- 
 plied that the commanding officer of the division or department in 
 technical language the reviewing authority is not obliged to follow 
 and does not, in fact, follow these recommendations. ''Court-martial 
 sentences found, ]>y the reviewing authorities, to be null and void for 
 want of jurisdiction," it is stated, ''have been allowed to stand." 
 ''The military commander is not obliged either to ask for legal advice 
 or to follow it when he has asked for it, and it has been given to him 
 by the responsible law officers of the Army." "Courts-martial 
 should be required to accept the interpretation of the law by a respon- 
 sible law officer. " 
 
 The records of courts-martial come to the Judge Advocate General 
 to "revise," and what legal effect this "revision" ought to ha"ve in 
 theory is a mooted question of law and policy on which I shall later 
 comment; suffice it here to say that a difference of view exists, and 
 that the judgment expressed by the Judge Advocate General in his 
 appellate capacity is customarily phrased in terms of a recommenda- 
 tion to the commander in the field. But this question, after all, like 
 many questions of fundamental principles, may become practically 
 irrelevant in the light of the facts. The assertion made in the 
 remarks above quoted is an assertion of fa< -t , vi/, that the command- 
 ing officer does not follow the legal advice which is given him and 
 does not accept the rulings of the responsible law officer. 
 
 On the question of fact let the facts themselves answer. 
 
 The cases fall necessarily into two groups. One class of cases, 
 coming to the Judge Advocate General for revision under United 
 States Revised Statutes, section 1199, the thirty-eighth Article of 
 War, and General Order No. 7, January, 1918, require and receive 
 no other revision or approval than that given by the Judge Advocate 
 General. The other class of cases includes sentences of death and 
 of dismissal of officers, which, under the forty-eighth article of war, 
 require confirmation by the President, as well as certain other cases 
 in wliich error of law has been found but the execution of the sentence 
 has not been suspended by the reviewing authority. The former 
 class of records go directly back from the Judge Advocate General to 
 the reviewing authority in the field; the latter class of cases go from 
 the Judge Advocate General through The Adjutant General and the 
 Chief of Staff to the Secretary of War, and sometimes to the Presi-
 
 MILITARY JUSTICE DURING THE WAR. 
 
 49 
 
 dent. The question of fact is, therefore, in what proportion of cases 
 does purely military authority fail to give effect to those revisory 
 rulings of the Judge Advocate General ? 
 
 The results in both classes of cases are shown in the following table: 
 
 Effect of action of Judge Advocate GcneraVs Office Apr. 6, 1917- Jan. 1, 1919. 
 
 Cases recommended for modification or 
 disapproval on legal grounds. 1 
 
 Number of 
 cases. 
 
 Recommendations 
 given effect. 
 
 Recommendations not 
 given effect. 
 
 Number. 
 
 Per cent. 
 
 Number. 
 
 Per cent. 
 
 To reviewing authority 
 
 212 
 279 
 
 205 
 273 
 
 96.7 
 97.8 
 
 7 
 6 
 
 3.3 
 2.2 
 
 To Secretary of War 
 
 Total 
 
 491 
 
 478 
 
 97.4 
 
 13 
 
 2.6 
 
 
 i Does not include a few cases in which the Judge Advocate General's Office recommended changes in 
 the place of confinement. 
 
 It thus appears that out of a total for the period covered of 491 
 cases recommended by the Judge Advocate General for disapproval 
 on legal grounds, there were only 13 cases in which the Judge Advo- 
 cate General's ruling was not followed; of these cases, 7 were not 
 followed by the reviewing authority in the field, and 6 were not 
 followed in the Secretary of War's office. 
 
 In the light of these facts, I think I am justified in asserting that 
 the records disclose no foundation for the assertion contained in the 
 above-quoted remarks. It is not a fact that the military commander 
 or that any military authority proceeds to follow out the dictates 
 of his own discretion regardless "of the interpretation of the law by 
 a responsible law officer," nor that he fails to follow the legal advice 
 "When he has asked for it and it has been given to him by the 
 responsible law officers of the Army." Whatever may be the legal 
 theory of the function now placed by statute in the Judge Advocate 
 General as the law officer or appellate tribunal for military justice 
 in the Army, that theory becomes virtually immaterial in the light 
 of the facts during the period of the war. The state of things sup- 
 posed by critics to exist, simply does not exist. Virtually the recom- 
 mendations of the Judge Advocate General are given practical 
 effect in the same manner as the trial courts in civil justice give 
 effect to the mandate of the supreme court of the State. 
 
 (fc) The question of legal theory. The question of legal theory, 
 stated concisely, is this: Is the Judge Advocate General's ruling 
 mandatory, like that of a supreme appellate court, with the effect of 
 compelling the reversal or correction of a court-martial judgment 
 founded upon legal error ? ' Or is it only recommendatory, in that 
 the commanding general or the President, as the case may be, is not 
 bound implicitly to follow and give effect to the ruling ? 
 
 The question was first presented to this office, during the present 
 war, in October, 1917, in the now celebrated case of the "Texas 
 mutineers" (C. M. No. 106,663, tried at Fort Bliss, Tex., in September, 
 1917). In this case certain sergeants, having been ordered under
 
 50 MII.ITAKY .ir>; . WAR. 
 
 arrest by a young officer, for a very minor ofFei axis, 
 
 while still under arrest, directed to drill; hul, as the Army Regula- 
 tions, properly construed, do not authorize noncommissioned of': 
 to be required to attend drill formations while under arrest, the 
 sergeants dedmcd to drill as ordered; for this disobedience they \. 
 found guilty of mutiny, :;nd sentenced to dishonorable di>charge and 
 imprisonment for terms of between 10 and !'."> y. 
 
 Now it may be at once and unreservedly admitted that this was a 
 genuine case of injustice, and that the injustice was due to an over- 
 strict attitude of military officers toward discipline; for it is conceded 
 by all that the young officer who gave the order to drill was both 
 tactless and unjustified in his conduct, and it is conceded that the 
 commanding officer who reviewed and approved the sentence wa^ a 
 Regular Army officer of long experience, who failed to appreciate the 
 justice of the situation. That this case illustrates the occasional 
 
 -ibility of the military spirit of discipline overshadowing the s 
 of law and justice is plain enough. But that it indicates any general 
 condition can not for a moment be asserted. Moreover, this very 
 ca-e serves also to illustrate the essentially law-enforcing spirit which 
 dominates in the office of the Judge Advocate General. The impro- 
 priety and illegality of the sentence in this case was immediately 
 recognized when the record arrived in the office for review. An 
 opinion was prepared pointing out the irregularity and injustice, 
 and directing that the foldings be set aside. But the legality of such 
 a direction was questioned in the face of a ruling by the Attorney 
 General of the United States, many years ago, that u sentence of 
 court-martial, once executed, can not be set -n by the Presi- 
 
 dent himself. This raised the general question of the authority of the 
 Judge Advocate General not merely to recommend for clemency (which 
 would not have been an adequate redress for the convicted men in this 
 case), but to direct the setting aside of the findings, in a judgment of a 
 court-martial, for legal error, where the sentence had been already ex- 
 ecuted (namely, in this case, the sentence of dishonorable discharge). 
 
 The Secretary of War having sustained the doubt as to the author- 
 ity of the Judge Advocate General to take such radical action, clem- 
 ency was extended by the President, releasing the men from confine- 
 ment and restoring them to duty, within about, three months from 
 the date of their conviction. At the same time a new measure 
 adopted by the Secretary of War, in the shape of General Order 
 No. 7, W. D., 1918, taking effect February 1, ItHs, which prevented 
 the recurrence of such instances, by directing that the commanding 
 general, upon confirming a sentence of death or officer's dismiss 1 
 or dishonorable discharge, should suspend the execution of the 
 sentence, pending a review of the case in the office of the Judge Advo- 
 cate General. Thus immediate measures were taken, to go as far 
 as could be gone under the law as conceded on all hands, to prevent 
 the recurrence of the situation presented in the Texas mutiny case.
 
 MILITARY JUSTICE DURING THE WAR. 51 
 
 It would be out of place here to set forth at length the arguments 
 pro and eon upon this question of legal theory. The basic statute 
 defining the powers of the Judge Advocate General in respect to 
 courts-martial judgments dates from 1862, and provides (U. S. 
 Revised Statutes, section 1199) that "the Judge Advocate General 
 shall receive, revise, and cause to be recorded the proceedings of all 
 courts-martial," etc. This word "revise" was construed by the 
 senior officer on duty under me, when dealing with the Texas muti- 
 neers' case (above cited), to signify a complete appellate authority 
 empowering the Judge Advocate General to correct and if appropriate 
 to sot aside, reverse, and annul a court-martial judgment which 
 involved some legal error. But this construction of the statute could 
 not be accepted by me. One reason was that for 55 years my prede- 
 cessors in office, beginning with Judge Holt, in Lincoln's administra- 
 tion, had failed to advance any such construction enlarging their 
 powei-s, and that a decision of a Federal court in 1882 had expressly 
 repudiated the propriety of such construction. A second reason was 
 that the assumption of such a power by this office under that statute 
 would equally operate to control not only commanding generals of 
 a division or department but also the President, as Commander in 
 Chief, in those cases where he has the reviewing authority under 
 the 48th article of war, and thus would render the Judge Advocate 
 General virtually a supreme military tribunal independent of the 
 President himself; the ultimate control of the discipline of the Army 
 would become vested in the Judge Advocate General. A third 
 reason was that even the President himself does not under the 
 existing law possess such a power to set aside and annul a sentence 
 of a court-martial, when once it has been executed; the absence of 
 such a power in the President having been constantly maintained in 
 a long series of opinions by the Attorneys General of the United 
 States, beginning with Caleb Cashing in 1854. (6 Op. A. G. 514; 
 10 Op. A. G. 66; 15 Op. A. G. 290; 17 Op. A. G. 303.) It would 
 thus be anomalous and extraordinary to suppose that the Congress 
 had intended to vest the Judge Advocate General with a supreme 
 authority which they had not seen fit to grant to the President 
 himsolf; the President being the ''natural and proper depository of 
 appellate judicial power" for the Army, as pointed out by William 
 Wirt, when Attorney General in 1818. Such was the issue of legal 
 theory, and such were the controlling reasons forcing me to refuse 
 to accept the construction of Revised Statutes, section 1199, which 
 would vest that extraordinary power in my office. 
 
 But the lack of that power, lodged somewhere, and most preferably 
 in the President himself, was certainly to be regretted. The General 
 Order No. 7, effective February 1, 1918, and drafted at my instance 
 and in my office in December, 1917, virtually prevented the re- 
 currence of injustice in most cases by requiring the reviewing au- 
 thority to suspend execution of the sentence pending the review in
 
 52 MILITARY .TUSTK I TIM'. WAR. 
 
 my office. But for rases that had occurred prior to that date, and 
 possibly for other oo-a-ional rases, a more radical remedy was 
 needed, for example, in the above-cited ease of tho Texas mutineers, 
 for whom the r< cord of dishonorable discharge remained perforce 
 unrevoked, although they had been already released from confine- 
 ment and restored to duty. 
 
 I was ready and anxious to see the existing law so amended as to 
 remedy this defect, by a grant of power from Congress to the Presi- 
 dent. Far from opposing sueh remedy, I took prompt measures to 
 secure it. My only negative attitude was to oppose the assumption of 
 that power by myself, through mere construction, sudden and revolu- 
 tionary, of a statute never before deemed to bear such interpretation. 
 
 This attitude on my part has been subjected to the most unwarrant- 
 able distortion in recent discussion, and I am therefore obliged now to 
 place before you the facts that (as I hope) furnish my vindication. 
 
 (c) The 'use made of the foregoing c<>ntrnr, i-sij. It has been pub- 
 licly alleged, first, that I was opposed to the correction of this ad- 
 mitted defect in existing law; and, secondly, that I carried my 
 opposition so far as to secure the revocation of the appointment of 
 my senior officer as acting Judge Advocate General, because of his 
 championship of the view which I opposed. 
 
 On the first point, a brief reference to documents long in print will 
 supply the instant refutation. In January, 1918, you yourself, hav- 
 ing agreed with my construction of the statute, and having con- 
 curred in the view that the situation required remedy, sent a letter 
 dated January 19 to the chairmen of both the Senate and House 
 Military Affairs Committees, transmitting a bill, S. 3692, H. R. 
 9164 (drafted in my office), amending the section of the Revised 
 Statutes in question so as to enable the President, advised by the 
 Judge Advocate General, to reverse or modify findings and sentences 
 of courts-martial; and in general to cure the existing defect of power. 
 On February 5, 1918, 1 testified fully in support of the bill, at a hear- 
 ing before the House Committee on Military Affaii-s (printed as 
 "Hearings before the Committee on Military Affairs on H. R. 9164," 
 February 4, 5, 22, 1918). During the year that has elapsed since 
 the presentation of that bill, neither the Senate nor the House has 
 seen fit to take action upon it. So far as I am informed, it was 
 never even reported out by either committee. I think, therefore, 
 that in mere justice to myself, I am entitled to point out that the 
 responsibility for any injustices that may have occurred in the ad- 
 ministration of military justice since February, 1918, and the in- 
 ability to correct injustices prior to that date, due to the defect of 
 appellate powers here in question, can not be laid at the door of the 
 Judge Advocate General. 
 
 In January of the present year, however, was introduced a new 
 bill, both in Senate and House, S. 5320 and H. R. 14883 (Cong. Rec.,
 
 MILITARY JUSTICE DURIXG THE WAR. 53 
 
 p. 1988, Jan. 23), which again proposed to correct the defect already 
 described, but this time by resting in the Judge Advocate General 
 (sec. 8) this power to disapprove the whole or any part of a finding 
 or sentence of a court-martial. The expedient proposed in this meas- 
 ure, viz, the grant of power to the Judge Advocate General (not the 
 President), is identical with the construction of Revised Statutes, 
 section 1199, urged by the senior officer on duty in my office in No- 
 vember, 1917, more than a year before. And speeches were now 
 heard on the floor of Congress lamenting the errors due to the de- 
 fective military law, urging the passage of this bill, and reflecting on 
 the negligence of the War Department in failing to administer com- 
 plete military justice. I am here concerned only with pointing out, 
 in respect to this particular and conceded defect, that the responsi- 
 bility surely does not lie with either yourself or myself; for the pas- 
 sage of the earlier bill, S. 3692 and H. R. 9164, introduced just one 
 year before, in January, 1918, would have rendered needless either 
 the bill or the discussion of January, 1919. 
 
 As to the second point: I said above that the bill of January, 1919, 
 proposed to lodge this appellate power not in the President out in 
 the Judge Advocate General, exactly as maintained by the senior 
 officer above referred to, in November, 1917, and as repudiated by me 
 at that time. This officer in a letter dated February 17, 1919 (Cong. 
 Rec., p. 3982, Feb. 19), has now attempted to place both you and me 
 in the position hot only of having opposed his efforts to correct the 
 defect of the law but even of concurring to cause him to be " relieved 
 of any duties in connection with the administration of military 
 justice," because of his efforts to reform the law. 
 
 It is unpleasant to have to defend oneself against such a charge, 
 because to set forth the facts as they were must involve the revelation 
 of a discreditable course of conduct in an officer whose abilities had 
 heretofore possessed my entire admiration and personal confidence. 
 Summarizing the facts as they appear of record, they are these: In 
 October, 1917, I was dividing my time between the duties of Judge 
 Advocate General and Provost Marshal General, usually spending the 
 evenings and often other parts of the day at the former office. On 
 November 3, 1917, the officer in question forwarded to me a memo- 
 randum formally superscribed: "Memorandum for Gen. Crowder," 
 and containing the following passage. 
 
 I am at times considerably embarrassed, and besides the transaction of public 
 business is I think somewhat impeded and confused, by the fact that it is not known 
 to the service at large that you are not conducting the affairs of this office as well as 
 those of the Provost Marshal General ; the public conception being that you are, as 
 you legally are, the head of both offices, as in fact you are not. * * * I ought to 
 be designated in orders by the Secretary of War as Acting Judge Advocate General 
 during your practical detachment from the office. 
 
 Tho reference here was to Revised Statutes, section 1132, which 
 authorizes the President "during the absence of the chief of any
 
 54 MILITARY .ll'STK'K M/IMNi; T! I K U'AB. 
 
 military bureau," to empower some officer of the department or corps 
 \\hose chief is absent to take charge thereof." The letter continued: 
 I U'Ueve ihat the com i i>li(.n which tin- service has of your relation to both offices 
 has succeeded in minimizing the importance of earh otlii <. and (hat this has resulted 
 already in considerable disadvantage to yourself, and has resulted in no advantage to 
 me. I submit this matter to you wholly di.-iii!-n'stcdly jMTnonally but with the 
 absolute cunvii lion that the order ought to issue. If the suggestion should le agree- 
 able to you, I should ask you to join in tli<- MBOXmtdtm to ti ,-v of War 
 
 asking its accomplishment. 
 
 I am expressing it mildly when L say that the conviction thus com- 
 municated was a total surprise to mj'self. Its formal manner of 
 transmission, when a personal visit from an adjacent, room would have 
 sufficed to open the matter frankly and naturally, gave me the im- 
 pression of being virtually charged with a neglect of duty which others 
 had observed but of which I was myself totally unaware, and showed 
 me that 1 was hardly in a position to pass an unbiased judgment upon 
 the propriety of my being relieved from titular charge of the Office of 
 the Judge Advocate General pursuant to the statute. I therefore 
 resolved, without personal protest or even argument, to leave the 
 matter entirely in the hands of yourself, the natural judge of the 
 proprieties. My reply of November 4, read: 
 
 MY DEAR GEN. ANSELL: It will be entirely agreeable to me to have you tak- up, 
 directly, and in your own way, with the Secretary of War, the subject matter of your 
 letter of yesterday 
 
 and closed with a simple sentence disclaiming knowledge of any sup- 
 posed embarrassment to public business as alluded to. No further 
 communication passed between us nor between the officer in question 
 and the Secretary of War; for it will be noted that both his original 
 proposal and my reply were expressly directed to his taking up the 
 matter "directly with the Secretary of War." But on November 6, 
 two days later, the officer presented in person to the Acting Chief of 
 Staff a memorandum containing a draft order for his own designation, 
 under Revised Statutes, section 1132, as Acting Judge Advocate 
 General, and asking that the order "be published immediately." 
 This memorandum began: " Doubtless the Judge Advocate General 
 of the Army is 'absent' from this office in the sen-e of 1132 Revised 
 Statutes and has been so absent since I have been here in charge," 
 and it ended thus: ''I am authorized to say that Gen. Crowder him- 
 self is entirely agreeable to my calling this matter to your attention." 
 The Acting Chief of Staff, taking this memorandum at its face value, 
 corroborated as it was by certain representations from the officer, 
 which raise a further question of veracity, on the same day made an 
 order designating the officer as Acting Judge Advocate General; but 
 this order was marked for suspended publication until December 9. 
 Meanwhile, neither the order itself, nor any information about it 
 from the officer himself or from any other officer, was brought to the 
 notice of yourself. On November 17, of your own motion, you 
 addressed to me a personal letter, expressing your disinclination
 
 MILITARY JUSTICE DURING THE WAR. 55 
 
 that I should permit iny duties as Provost Marshal General to en- 
 croach increasingly on my time, and asking whether it would he 
 possible for rue to allot my time more liberally to the office of the 
 Judge Advocate General. On November 18, I replied, pointing out 
 that the revision of the Selective Service ^Regulations, pending during 
 October and November, was now completed and that thereafter I 
 should expect to divide my time in even shares between the two 
 offices. On the same day, November 18, your attention was first 
 called to the unpublished order of November 6, above mentioned, 
 the occasion being the presentation to you by that officer of a list of 
 proposed appointees as judge advocates. Your inquiry of him, 
 whether I had been consulted upon those names, evoked from him 
 the revelation of the existence of that order, which had been obtained 
 by him under the circumstances above mentioned. Neither you nor 
 myself had up to that time been made aware of its existence. Con- 
 trary as it was to your own expressed desire in your letter of Novem- 
 ber 17 to myself, you promptly directed The Adjutant General to 
 revoke it; and that revocation appears of record in the file of The 
 Adjutant General, dated November 19, the next day. 
 
 This chronology, taken from each day's records, makes it plain that 
 the revocation of the order was due solely to the fact that the order 
 was obtained surreptitiously without your knowledge and was con- 
 trary to your express and recorded intention; that you revoked it 
 the moment you became a\vare of its existence; and that I myself 
 was not aware of its existence until you informed me. 
 
 Meanwhile, however, the memorandum of the officer in question, 
 arising out of the Texas Mutineers' case, and claiming extraordinary 
 powers for the Judge Advocate General, had been prepared by him 
 in this office, but without bringing it to my knowledge. It bears 
 date of November 10, but in the officer's own handwriting; and there 
 is nothing to show when it was transmitted to your office; for it 
 never passed through my hands, nor did it ever come to my knowl- 
 edge, in any form, nor was the existence of such a memorandum even 
 suspected by me, until after the completion of the entire chronology 
 above set forth. It was on the evening of Friday, November 23, 
 four days after the above order had been revoked by you, that I first 
 received from your hands the memorandum in question, with the 
 request to consider its legal argument for the power therein claimed . 
 During the days of November 24, 25, and 26 I proceeded with a study 
 of the precedents, calling two skilled judge advocates to my assist- 
 ance, and on Tuesday, November 27, a brief, so dated, was filed with 
 you by me. This brief exposed the legal fallacies of the above officer's 
 memorandum, pointed out its suppression of material and conclusive 
 authorities to the contrary, and expressed the view to which I have 
 ever since adhered, viz., that the power did not exist under present 
 law, and that the only source of remedy would be a grant of power 
 from Congress. On the same day, November 27 you expressed
 
 56 MILITARY JTSTK'K WHINf, THK WAR. 
 
 assent to the \ie-\\s set forth in my brief; and \<>ur memorandum 
 rone -hide-: "\ frank appeal to the legislature for added power is 
 p." This concurrence, of view* between A our-elf and myself was 
 reached, I note, on November 27, and not before then. 
 
 It is a peculiar roineidenee that the abovo officer's surreptitious 
 art of securing the order designating him as Acting Judge Advocate 
 General took place on November 6; that his brief churning extraor- 
 dinary judicial powers for the Judge Advocate General (which had 
 been preparing, as his letter states, since October is) was withheld 
 until at least a week later than the signing of the order which placed 
 him in the position, as he supposed, to exercise that extraordinary 
 power: and that although the order itself which placed him in office 
 was so managed as to be kept from your knowledge, yet the memo- 
 randum which would have added that power to his office was handed 
 directly to you (not to me), and at a time when yon still supposed 
 that I was the incumbent, and not he. The coincidence is so remark- 
 able that an inference of deliberate and ambitious planning for per- 
 sonal power, and only for personal power, is unavoidable. 
 
 At the risk of being tedious, I have thus set forth from the records 
 the chronology of this episode; for thus alone could these recent 
 public insinuations reflecting both on your supposed conduct and 
 on mine bo conclusively dispelled. It must now be clear to all 
 that the actual reason for your revocation of the order designating 
 that officer as Acting Judge Advocate General was that it had been 
 surreptitiously obtained and was contrary to your initial and constant 
 intention; that the memorandum claiming for the Judge Advocate 
 General an unauthori/ed power to correct court-martial errors 
 not brought to my notice until four days after the abovo order had 
 been revoked; that your consensus with me as to the unsoundness of 
 that claim was not reached until a week subsequent to that revoca- 
 tion; that therefore the revocation of that order could not possibly 
 have been motivated, either in your mind or in mine, by our failure 
 to accept his views on the subject of the legal powers of the Judge 
 Advocate General; and, in conclusion, that the assertion or insinua- 
 tion that his appointment was revoked because of your and my 
 opposition to his views as to the proper method of improving the law, 
 is baseless and unjust to us both. 
 
 I must, however, continue for a moment on this subject, because 
 the same officer, in his letter of February 17, 1919 (Cong. Record, 
 p. 3983, Feb. 19), makes a second charge of a similar sort, which 
 is not only equally baseless but reveals on his part the same singular 
 methods of manipulation. In that letter, setting forth his continued 
 efforts ''to break up such a static and intolerable legal situation," 
 he continues: 
 
 In Soptoml>er (1918), upon my insistent recommendation, power was established 
 in the Acting Judge Advocate General in France to make rulings ujxm matters of the 
 ad ministration of military justice, in our own forces in France, which would control 
 all commanding generals until overruled by the Secretary of War. This is now being
 
 MILITARY JUSTICE DURING THE WAR. 57 
 
 opposed by the commanding general American Expeditionary Forces, and my own 
 action and propriety in procuring the issue of this order is being subjected to question. 
 
 The reference is to General Order No. 84, dated September 11, 
 1918, amending Section II of General Order No. 7, dated January 17, 
 1918, the latter being the general order, above referred to, which 
 aimed to avoid the recurrence of such dilemmas as that of the Texas 
 mutineers' case, so far as the Judge Advocate General's powers per- 
 mitted. The facts are in the first place, that this amending General 
 Order No. 84 was also obtained surreptitiously by the above officre; 
 but in the second place, that it has not been opposed by Gen. Pershing. 
 A brief statement will suffice to show this. The original General 
 Order No. 7, in its Section II, applying to the branch Judge Advocate 
 General's Office in France, directed that office to "report" to the 
 reviewing authority any legal errors, "to the end that any such 
 sentence or any part thereof so found to be invalid or void shall not 
 be carried into effect." The amending General Order No. 84 sub- 
 stituted for the above clause this sentence: "Any sentence or any 
 part thereof, so found to be illegal, defective, or Void, in whole or in 
 part, shall be disapproved, modified, or set aside, in accordance with 
 the recommendation of the Acting Judge Advocate General (in 
 France)." This amendment was prepared by the officer above 
 referred to. Obviously, its language embodies precisely the grant 
 of mandatory appellate power in the Judge Advocate General for 
 which he had been contending in his brief of November, 1917 a 
 contention which was at that time explicitly repudiated by both 
 yourself and myself; and since February, 1918, the bill above men- 
 tioned, curing the defect' of law, and granting the power to the 
 President, was still pending in Congress. 
 
 Since his return from France in July, 1918, this officer being senior 
 on duty in my office, had the actual supervision of all matters of 
 military justice; the selective draft then requiring my most urgent 
 attention, and the volume of rulings coming from the 50 officers 
 of the military justice division being left entirely for the final signature 
 of the officer in question. He thereupon prepared this amending 
 order, embodying the fundamental principle already expressly 
 repudiated both by you and by me, and took it, not to yourself nor 
 to myself, but directly to the office of the Chief of Staff. The radical 
 nature of the proposed change of rule in this respect was not called 
 to the attention of that office; rather was it represented as involving 
 merely verbal improvements. It issued on September 11 ; and amidst 
 the mass of other printed general orders, it never came to either your 
 attention or mine until recently. Here, then, was a second attempt 
 to introduce into our overseas practice, surreptitiously, the same 
 unsound assumption of power which had been already squarely 
 rejected nearly a year before. 
 
 This sudden and inconsidered introduction of such a fundamental 
 novelty was indeed calculated to evoke objection from the reviewing
 
 58 MiLii'Ai'.v .irsTici: nrjiiNi; TIM. \VAK. 
 
 authorities in France, more especially from a ( ..mmander iu the field 
 who had boon accorded iu onpreeedented fashion that, independence 
 of military action so widely exen-U.-d l>y (ien. Perching. The un- 
 wisdom of this art, added t iis .-urreptitioiisness, was under the 
 circumstances extreme. But it is not true to a^ert that the order 
 "is now being opposed by the commanding general American Expe- 
 ditionary Forces." Had it been opposed or protested, this attitude 
 would have been natural enough. On the contrary, no word of such 
 opposition or objection is anywhere on record in my ollice, nor can 
 any trace of it be found. The only document in which is found any 
 objection on a point of law, on the part of the commanding general 
 in disagreement with the Acting Judge Advocate General in France, 
 is a memorandum of November 14, 10 IS, raising a question under 
 the Thirty-seventh Article of War. That article, which applies 
 equally at home and in the field, lays down the usual modem rule 
 forbidding that an erroneous ruling on evidence or procedure shall 
 be ground for disapproval unless it affects the susbtantial rights of 
 the accused "in the opinion of the reviewing or confirming authority"; 
 and the contention of Geu. Pershing's judge advocate was that under 
 this statute only the reviewing authority can pass upon the question 
 of insufficiency of evidence as a substantial error. There is no 
 mention of General Order No. 84 in the entire document, nor any 
 reference to its contents. Neither in this nor in any other document 
 yet received from (leu. Pershing's headquarters is there any oppo- 
 sition to General Order No. 84. The insinuation that here again 
 the Army this time the Army in France is opposing a beneficent 
 measure of reform in military law is baseless. 
 
 The foregoing two instances of a groumlless charge that I have 
 opposed the reforming efforts of this officer are intimately connected 
 by him with a third instance equally groundless, in which the mis- 
 representation lias been so significant to the public that I must in 
 this place record its refutation. In the same letter of this officer, 
 published in the Congressional Record, February 19, last, page 3983, 
 column 1, the officer is supposed to be exonerating himself from 
 criticism made on the floor of Congress that he "should have gone 
 directly to the President" when balked in his efforts made within 
 the department. Purporting then to explain the "impossibilities 
 of such a course," he gives as an illustration his action when four 
 sentences of death were pending in the department for confirmation 
 and when this office had recommended execution: <; I went to the 
 head of the office," meaning myself, of course, presumably, 'and 
 orally presented to him my views in opposition. I then filed with 
 him a memorandum in which I did my best to show what seemed 
 to me to be obvious, that these men had been most unfairly tried, 
 had not been tried at all, and ought not to die or suffer any other 
 punishment upon such records. Discovering that ihtse memoranda
 
 MILITARY JUSTICE DURING THE WAR. 59 
 
 had not been presented to the Secretary of War, and feeling justified 
 by the fact that I had no other forum in this department, I gave a 
 copy of the memorandum to a distinguished member of the Judiciary 
 Committee of the House and was told by him that he could present 
 the cases to the President himself." The story as thus told is plausi- 
 ble, and purports to condemn the superior authorities of the War 
 Department, and implies that the subsequent commutation was 
 obtained solely by this outside intervention of a Member of Con- 
 gress. But a simple perusal of the official files now lying before me 
 demonstrate that the charge is a mere fabrication and a cruel one. 
 
 These cases of the sentence of death had been pending during 
 March, 1918, in this office. The several officers in the Division of 
 Military Justice had, after scrutiny, found no legal error, and the 
 record in that condition, approved by the very officer who now makes 
 this charge, had been placed in my hands. In the meanwhile, I 
 submitted it informally to more than one other officer, including a 
 judge advocate, not at that time attached to this office, who had 
 taken part in the 1916 revision of the Court-Martial Manual in the 
 chapter upon procedure, witnesses, and evidence, and whose name 
 is well known to the legal profession as an authority on the subject 
 of evidence; the memorandum of the latter disclosed no reason to 
 doubt the adequacy of the proof of the offense. Meantime, also, I 
 had directed further inquiries to be made in my office as to the 
 practice in respect to death sentences for the offense of sleeping on 
 post in the theater of war; for two of the sentences were imposed 
 for the offense of sleeping on post. 
 
 On April 5, 1918, my memorandum transmitted the four death 
 cases to Gen. March, Acting Chief of Staff; the memorandum in- 
 cluding this statement, "There is a very large question in my mind 
 as to whether clemency should be extended," and calling attention to 
 the express request of the commander in chief in France and of his 
 judge advocate (already alluded to above in this letter) that the 
 death sentences should be confirmed. On April 15 the senior officer 
 on duty in my office (the one now making these charges) presented 
 a memorandum to me, at my request, examining the four cases in 
 detail. In the two cases of sentences for refusal to drill this memo- 
 randum refers to the plea of guilty put in by the accused; then, 
 treating together the two cases of Sebastian and Cook, sentenced for 
 sleeping on post, the memorandum continues: "The death penalty in 
 each of these cases was awarded for sleeping on post, after a plea of 
 guilty." The memorandum then goes on: "These cases were not 
 well tried," setting forth the inadequate composition of the court; 
 ' those were mere youth; not one made the slightest fight for his life; 
 each was defended by a second lieutenant; such defense as each had 
 was not worthy the name. Were I charged with the defense of such 
 a boy on trial for his life, I would not, while charged with that duty, 
 permit bim to make a plea that meant the forfeit of his life." This
 
 60 MII.ITAKY .irSTlCK MMMNt; THK WAR. 
 
 of (he officer in question was il:itr<l April 1."). It was 
 addressed personally to me in rough draft, and was not such a docu- 
 ment ns is usually prepared, in final form, for transmission beyond the 
 immediate chief. On the very next day a document dated April 10, 
 signed by mo personally, was fded with the Chief of Staff; it begins: 
 "Since our interview on the four cases from France * * * my 
 attention has been invited to certain facts of which I had no knowl- 
 edge at the time of the interview and to which I think j'our attention 
 should be invited." The memorandum then proceeds in the fourth 
 and concluding paragraph as follows: "Permit me finally to observe, 
 without reopening the case, that it will always be a matter of regret 
 to me that the four cases upon which we were called upon to act 
 were not well tried." The memorandum then continues, using 
 almost literally the language of the above officer's memorandum: 
 "Each of the four defendants was a mere youth, and I am a little 
 impressed by the fact that not one of them made a fight for his life. 
 Each of the men was defended by a second lieutenant who made no 
 special plea for them. I regret exceedingly that in each case the 
 accused was allowed to make a plea of guilty. As counsel for them 
 I should have strongly advised that they plead not guilty." It will 
 be observed that this language is almost a literal reproduction of the 
 language of the above officers memorandum above quoted and filed 
 with me on the very day before. On the very next day, viz, April 17, 
 the Chief of Staff writes a memorandum to the Secretary of War. 
 
 The notable fact of chronology thus is that within 2/ t hours after 
 receiving the memorandum of the senior officer on duty under me, in 
 opposition to the confirmation of these sentences, I myself drafted 
 and sent to the Chief of Staff a memorandum covering the very points 
 mentioned by the above officer and using, in large part, the identical 
 language. Furthermore, within 24 hours more, or within 48 hours 
 after the memorandum in question was dated, the Chief of Staff had 
 filed a memorandum with the Secretary of War. On May 1 the 
 Secretary of War forwarded the records to the President, recommend- 
 ing clemency, and on May 4 the President remitted, by pardon, the 
 sentence of death for the two men sleeping on post and reduced the 
 sentence of the other two men to three years (for refusal to drill), thus 
 following exactly the recommendation of the Secretary of War, and ex- 
 plicitly thanking the Secretary for his careful presentation of the cases. 
 
 Whatever therefore may have been said to the President during 
 this interval by the Member of Congress, it is obvious that the Presi- 
 dent's action was taken as the culmination of a careful study of the 
 case within the department and of a series of memoranda initiated 
 in my department and following their due course to the Secretary of 
 War; and that this conclusion was the result of the united efforts of 
 all the War Department officials concerned with that subject, in 
 which the r61e of the officer in question was only a minor one, and 
 was at the beginning far from being the humane one.
 
 MILITARY JUSTICE DURIXG THE WAR. 61 
 
 But the specially notable fact is that I not only incorporated and 
 presented the ideas of the officer in question, but that I was unfortu- 
 nately thus led into an important blunder of fact through my reliance 
 upon it. In paragraph four of my memorandum I stated, as a ground 
 for doubting the thoroughness of the trial, "in each case the accused 
 was allowed to make a plea oj guilty." The Chief of Staff, in his memo- 
 randum opposing the extension of clemency, pointed out the blunder 
 as follows: "Referring to paragraph 4 of the memorandum of the 
 Judge Advocate General, I do not find that his statement, 'I regret 
 exceedingly that in each case the accused was allowed to make a plea 
 of guilty,', is a fact; the record shows that two of these men, namely, 
 Private Sebastian and Private Cook, did plead not guilty, and in the 
 cases of the other two men, Privates LeDoyen and Fishback, although 
 the accused pleaded guilty, the court proceeded to take evidence in 
 the cases in spite of that plea." The significant thing about this error 
 in the officer's memorandum was that I, relying implicitly on his 
 memorandum, was led to repeat the same error in my own memo- 
 randum for the Chief- of Staff, thus furnishing the latter the opening 
 for his destructive criticism above quoted. 
 
 It is now apparent that the statement in the officer's above quoted 
 letter of February 19, "discovering that these memoranda had not been 
 presented to the Secretary of War," is not only a gross misrepresenta- 
 tion, in that the very ideas and language of his memorandum were 
 incorporated in my own memorandum, but that this document went 
 forward within twenty-four hours to the Chief of Staff and within 
 forty-eight hours to the Secretary of War, and that these documents 
 were officially on file and could have been inspected in the file at any 
 moment; so that the officer in question must have gone to the Member 
 of Congress without any attempt to discover the facts ; and one year 
 later he has published far and wide a defamatory statement which is 
 contrary to facts as they stare out from the face of the official records. 
 
 I confess myself unable to comprehend such methods of manipula- 
 tion in this agitation. Certainly, to cope with them would be endless, 
 and I shall not attempt to continue the refutation of any others of 
 the specific and completely groundless charges reflecting upon my 
 supposed personal attitude. 
 
 I close this part of my comments, regretfully entered into by me, 
 with the observation that neither in these nor in any other aspects of 
 this issue of fundamental legal principle has there been exhibited at 
 any time any opposition on my part to measures of real improvement 
 in military law or procedure. The issue here was simply whether the 
 incumbent of my office, whether acting ad interim or for the four- 
 year term of appointment, should be vested with a power which be- 
 longs, if anywhere, in the President, and which Congress alone can 
 grant to him. Neither ambition nor any other motive will ever in- 
 duce me to assent to an illegal and unwise assumption of official 
 power. Apart from this single instance, I have never opposed any
 
 62 MILITARY JUSTICE DURING THE WAR. 
 
 action or proposal of the officer in question directed either to the im- 
 provement of military justice in general or to the doing of better 
 justice in an individual case; and this for the simple reason that ho 
 has never made any such proposals to me. Except for the period of 
 his absence in France for about 90 days in April-July last, he has 
 been, since August, 1917, the senior oflicer on duty in my office, with 
 ample opportunity to introduce general improvements of procedure 
 or to remedy individual cases; and the moral responsibility for not 
 initiating whatever might have been done and was not done lie.-* 
 therefore upon him for the greater part of the war period. How 
 ample was that general opportunity to act, unchecked either by me 
 or by yourself, may be plainly seen by the manner in which General 
 Order No. 84, above mentioned, was promulgated in September, 1918. 
 And how little he did in fact avail himself of individual opportunities 
 may be interred from the circumstance that in the three cases re- 
 cent ly cited on the floor of Congress as cases of excessively severe sen- 
 tences in which this oflice is said to have harshly denied an application 
 for mitigation by clemency (C. M. Nos. 1 13,076, 1 15,506, and Robbin 's 
 case), the document containing the refusal to recommend clemency 
 bears in each of tlie tltree cases the signature of that officer himself. 
 
 I would have preferred to be spared the recital of these facts. But 
 even as it is I have refrained from the disposal of other speckle criti- 
 ci>ins, equally groundless, in which personal mention would have 
 been necessary. I have said no more than seemed unavoidable in 
 refuting these unjust inuendoes, now so widely spread that it is per- 
 haps impossible for the truth ever to overtake them. 
 
 m. RECOMMENDATIONS. 
 
 I have not made my position clear, Mr. Secretary, if I have given 
 the impression that in my opinion there is nothing to change or to 
 improve in our system of military justice. My chief concern in this 
 letter has been to remove the slurs that have been cast upon the 
 whole system as such; to refute by plain facts the extreme and ex- 
 aggerated criticisms that are calculated to undermine, unjustly and 
 needlessly, the public confidence hi that system; and to rodeem, if I 
 can assist in doing so, the honor of that admirable band of conscien- 
 tious and able officers who have been called to share in its adminis- 
 tration during the last two years. I would like the American people 
 to know confidently and take pride in the fact that we possess a 
 genuine and adequate system of military justice, founded upon the 
 Constitution of our forefathers and the acts of Congress of our con- 
 t emporaries administered in the trial courts by officers required to be 
 familiar with it and thoroughly scrutinized in its appellate stages by 
 professional lawyers whose sole object is to insure conformity to the 
 requirements of law and to secure the just protection of the accused. 
 
 That military justice can not be improved in any details could 
 certauily not be maintained by anyone. But neither does anyone
 
 MILITARY JUSTICE DURING THE WAR. 63 
 
 maintain that civilian justice is perfect. The experience of the last 
 two years, when carefully studied, will doubtless reveal wise measures 
 by which improvements of the military code can be secured. The 
 same is true of each one of our institutions, civil as well as military, 
 that 'has passed through the crucible of war time. But it will first 
 be necessary to compare divergent opinions, based on differences of 
 local experience, and of important policies. At the present moment 
 there lies before me a voluminous report, in manuscript, representing 
 the collated result of suggestions of improvement, prepared at my 
 request by each one of the officers on duty in my office, as based on 
 his own observation and experience. In its final form this report 
 will be of the greatest value. 
 
 Meanwhile, as it is never my preference to remain content with a 
 defensive or critical attitude, but rather to offer constructive meas- 
 ures where apt and necessary, I venture to select a few proposals, 
 representing those which in my judgment offer the greatest promise 
 of benefit and require the least assistance from statutory change. I 
 refrain from explaining at length in this letter the effect of each pro- 
 posal ; it will be fairly obvious to one familiar with the military system. 
 
 The specific proposals are as follows: 
 
 1. (a) By general order amend paragraphs 75 and 76 of the Manual 
 for Courts-Martial relating to submission and investigation of charges, 
 so as to require the officer immediately exercising summary court- 
 martial jurisdiction over the command to which the accused belongs 
 either to personally conduct the investigation or else to depute it to 
 an officer of experience, preferably not below the rank of captain, 
 and to confront the accused with witnesses, and prepare a summary 
 of the evidence and settle upon it in agreement with the accused, 
 substantially as in the British practice. 
 
 (b) Amend paragraph 78 of the Manual " Determination of proper 
 trial court" by a general order providing in substance that the officer 
 exercising court-martial jurisdiction shall not order a case to trial 
 until he has received and considered the written opinion of his staff 
 judge advocate or of this office. 
 
 The intent of this proposal is, by laying dowTi with greater particu- 
 larity the duties and responsibilities of investigating officers and of 
 staff judge advocates, to guard against any possibility of (a) hasty, 
 ill-considered, or arbitrary action by any commanding officer, (b) 
 ordering any person to trial without full and careful, as well as im- 
 partial, investigation of the case, and until reasonable probability of 
 his guilt has been shown, or (c) trivial cases going before general courts ; 
 and also to insure adequate preparation in all cases ordered to trial. 
 
 2. (a) Amend the forty-fifth article of war by striking out the 
 words "in time of peace." 
 
 (b) By proper amendments of the Articles of War, so change the 
 composition and increase the importance and the powers of tho 
 special court-martial, that Qike the British district court-martial)
 
 -\: M7MJTQ THB WAR. 
 
 may award confinement up to two \ears with accompanving forfeit 
 hires of pay and allowances; and may adjudge a *>/*/./<//,</ senteiicl 
 of dishonorable discharge, to he suspended until the soldier's re leas] 
 from confinement. 
 
 (<) Provide by general order further amending the seveuM 
 th paragraph of the Manual for Courts-Martial byway of cant m 
 to convening authorities as an expression of the policy of tlie (io> 
 eminent, a direction, substantially in the language, of the gcnen 
 order issu>d January '2'2, 1919, that "Trial by general court-mart 'u 
 will be ordered only where the ])unishment that might be imposed bj 
 a special or summary court or by the commanding officer under th] 
 provisions of the one hundred and fourth article of war would bj 
 under all the circumstances of the case clearly inadequate.' 1 
 
 I believe the changes included in this proposal would tend powei 
 fully to increase the number of special courts-martial, and correspom 
 ingly decrease the general courts as in the British Army; and therd> 
 automatically to reduce the possibility of unduly severe sentence 
 Striking the words "in time of peace" out of the forty-fifth articl 
 of war, would enable the President to fix the maximum limits 
 punishments, in war as well as peace. 
 
 3. Recognizing the need, in the trial of serious, difficult, and coi 
 plicated cases of an impartial legal adviser to the trial court; &n\ 
 recognizing also the difficulties involved in the institutions of so fai 
 reaching a change in our system of court-martial procedure, I pi 
 pose, in order to try out the plan 
 
 (a] A general order, modeled after the practice of the British fk 
 general court-martial, of appointing an especially qualified meml 
 on the court who is required to be present at the trial of all serious: 
 difficult, and complicated cases, this member to be a member of 
 Judge Advocate General's Department, if one be reasonably availabh 
 
 4. Adopt either the amendment to Revised Statutes 1199, propose! 
 by the Secretary <>f War January 19, 1918, which covers the groun] 
 more completely and more flexibly than the now pending bills, ail] 
 also leaves the final power of ultimate decision in the President 
 Commander in Chief of the Army; or else adopt the plan embodk 
 in the proposed joint resolution sent to Senator Mdvellar Februai 
 ;20, 1919, which allows the President to "correct, change, rr\ 
 
 ,H<!e any sentence of a court-martial found by him to have In 
 iieously adjudged irhctlnr by trror of Imi) or of fart.." 
 This would supply the needed appellate jurisdiction over coi 
 martial sentences, lacking under existing law, and would place it 
 the Commander in Chief of the Army, who would normally act 
 the recommendation of his constituted legal adviser in military maj 
 t( !< the Judge Advocate General. 
 
 E. II. CROWDEK, 
 Judge Advocate General. 
 The SECRETARY OF WAR. 
 
 o