ESTABLISHMENT OF MILITARY JUSTICE .

83 9
Q . Do you recall anything as to the length or character of that report I
am speaking now of the supplemental report?A . It was nearly as long as
the other .
Q . Did it differ materially from the other in character?A . Yes, sir . I
think the longer report was more of a technical discussion of the question s
surrounding points which interested the Judge Advocate General's office . I t
was a formal report and the supplemental was, I would say, of the characte r
of an unofficial report in that it was outside the questions common to th e
Judge Advocate General's Office, and it was more about his opinions as to th e
standing of the armies and what his observations had been as to the military
situation generally .
Q . Did you at any time in the office, after your return, hear Gen . Ansell
refer to the fact that his formal report had never been acted upon or submitte d
to higher authority?A . No, sir . I never heard that discussed .

EXHIBIT 32.

WAR DEPARTMENT ,
OFFICE OF THE JUDGE ADVOCATE GENERAL,
Washington, November 10, 1917 .
Memorandum for the Secretary of War .
(For his personal consideration) .
Subject : Authority vested in the Judge Advocate General of the Army by sec-
tion 1199, Revised Statutes, to " receive, revise, and cause to be recorde d
the proceedings of all courts-martial, courts of inquiry, and military commis-
sions, and perform such other duties as have been performed heretofore b y
the Judge Advocate General of the Army . "
1. It is my duty to bring to your attention and present to you my views upo n
a long-existing situation which arose out of an ill-considered and erroneou s
change of attitude upon the part of this office that occurred within a score of
years after the close of the Civil War--a situation which has endured eve r
since in the face of the law and in spite of attending difficulties but withou t
reexamination, and which has profoundly affected the administration of mili-
tary justice in our Army. I refer to the practice of this office, adopted i t
seems, in the early eighties, to the effect that errors of law appearing on th e
record, occurring in the procedure of courts-martial having jurisdiction, how -
ever grave and prejudicial such errors may be, are absolutely beyond all power
of review. This nonuser of power which Congress authorized and required
this office to exercise has, in numberless instances of court-martial of member s
of our Military Establishment, resulted in a denial of simple justice guarantee d
them by law . Under the rule concededly illegal and unjust court-martial sen-
tences, when once approved and ordered executed by the authorities below ,
pass beyond all corrective power here and can never be remedied , in the slight-
est degree or modified except by an exercise of Executive clemencyan utterl y
inadequate remedy, in that it must proceed upon the predicate of legality, ca n
operate only on unexecuted punishment, and, besides, has no restorativ e
powers.
2. The last and most flagrant case of the many recent ones which hav e
moved me to exercise an authority of this office which has long lain dormant ,
perhaps denied, in respect of which I address you this memorandum, was th e
recent case of the trial and conviction for mutiny of 12 or 15 noncommissione d
officers of Battery A, of the Eighteenth Field Artillery, resulting in sentencin g
them to dishonorable discharge and long terms of imprisonment . Those me n
did not commit mutiny . They were driven into the situation which served a s
the basis of the charge by the unwarranted and capricious conduct of a youn g
officer commanding the battery who had been out of the Military Academy bu t
two years . Notwithstanding the offense was not at all made out by the evidenc e
of record, notwithstanding the oppressive and tyrannical conduct of the bat-
tery commander, notwithstanding the unfair and unjust attitude of the judge
advocate, which also appeared on the record, these noncommissioned officer s
were expelled from the Army in dishonor and sentenced to terms of imprison-
ment ranging from seven to three years . The court had jurisdiction and its
judgment and sentence for that reason could not be pronounced null and void ,
but its conduct of the trial involved the commission of many errors of law