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Lawyer PDF
Contents
Chapter Page
I. A First Look. At. The Corps ........................ 1
11. In The Beginning ................................. 7
11.1. Two Wars and An Intervening 30 Years' Peace ------ 33
IV. The Civil War and Beginning of T h e Classical Period
..
of American Mllitary Law ......................... 49
v. The Classical Period of Military Law ---------------- 71
VI. New Responsibilities and New Articles of War -------- 10 1
VII. T h e First World War, Further Revision of the Articles
and 20 Years of Peace .......................... 1 13
VIII. The Second World War and Two New Military Codes- 159
IX. Korea and T h e Uniform Code of Military Justice ---- 203
Bibliographic
. . Note ................................ 263
Bibliography ...................................... 267
A First Look At The Corps
This history celebrates the Bicentennial of The Judge Advocate
General's Corps of the United States Army. The Corps joins its
military colleagues to mark the second century of progress in
honorable service to the nation. Army lawyers have been with
their commanders in that national service since the beginning: the
institution of the Army lawyer is but 23 days younger than the
Army of 1775 commanded by George Washington.
War has been said to be an impersonal thing, and in many
respects it is. However, armies are necessarily composed of human
beings-who perform or influence the performance of great
actions; who bring new growth and new challenge; and who have
the capacity to leave a legacy of honor, hard work and respect for
the law. This is a history of such people. It is also a history of the
law they practiced, where their deeds and dreams depend for
explanation upon the conditions and circumstances of their time.
Many kinds of lawyers appear here in text and vignette. Wells
Blodgett, Blanton Winship and Eugene Caffey were combat
soldiers of great distinction, wearers of the Medal of Honor,
Distinguished Service Cross or Silver Star. Important, too, were
the citizen-soldiers, members of the Reserve and National Guard,
who left home and work to answer wartime needs. There are
"great" names, too: John Marshall and Felix Frankfurter of the
Supreme Court; great law teachers such as John Chipman Gray,
Edmund Morgan, and John Henry Wigmore; and such promi-
nent public servants as Henry L. Stimson, Enoch Crowder, Patrick
J. Hurley, and Leon Jaworski.
The unique American military legal system both produced and
is the product of great lawyers. After John Adams, who
introduced the first major criminal code in the Continental
Congress in 1776, the efforts of men like William Winthrop,
Samuel Ansell and Kenneth Hodson produced proud chapters in
the history of the law.
Finally, there is a general category of men who participated in
key events in o u r history, who responded to the various
challenges and tests. Judge Advocates from the beginning to
modern days had the burden of conducting trials in the glare of
publicity: the prosecutions of Benedict Arnold, the assassins of
President Lincoln, and the Nazi saboteurs come to mind. Other
"events" presented opportunities for bold, forthright public service
by the Judge Advocates General of the time: the Army's growth
from 200,000 to eight million men in World War 11; implementa-
tion of a revolutionary Uniform Code of Military Justice during
combat in Korea; and the most recent problems of a new kind of
war and new forms of public reaction. Judge Advocates General
George Davis, Myron Cramer, Ernest Brannon and Charles
Decker, among others, were the architects of adjustment to the
demands of modern war and politics as "the world's largest law
firm" fmished the last decades of its second century.
The bicentennial celebration of these Judge Advocates and their
contributions is a sufficient reason for this history. However, there
are other reasons, consideration of which enriches the Corps
history and increases its usefulness. First among these is the way
in which the history of these officers signals the development of
ideas and legal concepts. Although war may be impersonal, the
development and application of law clearly are not. Law, especially
the criminal law, applies to people and is adopted by them for the
protection of basic values. The values to be protected and the
nature of legal effects on people touch fundamental human
concerns; for that reason, they also provoke the finest in human
thought and action. Those in the society empowered to enact and
administer laws are compelled to enviable action by the serious-
ness of the trust with which they are charged. Much of that trust
in the Army society has reposed in its lawyers over the years, and
a study of those men will disclose the ideas and ideals by which
they lived.
The growth of ideas and ideals has two facets, both suggested
by this history of the Army's lawyers. One facet is the content of
law, the "rules" for behavior, such as those contained in the Army
sponsorship of what became the first modern rules for land
warfare among civilized states, the Lieber Code. The other facet
of law is the way it is applied to people, how its coercive power is
controlled and balanced between society's needs and personal
liberty.
The military legal system is a part of the total national legal
system in the United States, flowing as it does from the
constitutional powers of Congress to "provide for the common
Defense," "to raise and support Armies" and "to make Rules for
the Government and Regulations of the land and naval Forces."
However, its origins antedate the Constitution by more than a
decade. The first military code was enacted in June 1775, and
when William Tudor was made the first Judge Advocate of the
Army in July, he was the first legal officer appointed under
authority of the nascent United States, 14 years before there was
an Attorney General or Chief Justice.
However, there is more meaning to this than recitation of a
L6first."
The commanders of the colonial Army did not promulgate
their own criminal code; they went to their legislature which
enacted for them a set of legal controls on the behavior of the
forces. This followed an English practice in effect since 1689
when Parliament wrested from the Crown the power to legislate
for the Army and enacted the first Mutiny Act. The colonists, by
continuing the practice, established both the principle of civilian
control over the military forces and the relationship between
civilian and military law.
Civilian control and civilian standards have been part of the
Army story for two centuries. We will show how these-influences
/,'
worked on the Army's law and especially on t+ Army kiwy&sl
The story for each is one of growth according tohegular patterns.
To speak of "the Army's law" is to use a phrase which is not
sufficiently descriptive. Army lawyers practice under two distinct
legal orders: an external order consisting of those parts of
international and domestic law which affect the organization,
mission and operations of the Army, and an internal order which
flows from the Army's authority and need to regulate itself. All
kinds of law are included within these orders and the growth in
their numbers is among the first in drama and effect; within most
of the kinds of law there has also been growth, particularly in the
judicialization of the criminal justice system. There have been
significant increases in the size of the Corps and changes in its
composition as women and minority officers have taken their
places and the citizen-soldier has repeatedly answered the "call to
colors." All have shared the same sense of professionalism as
soldiers and attorneys which is the modern JA's heritage. They
have also contributed to the growing role in community service
played by the Army's lawyers, both in extended assistance to
individuals within the Army and in ever-increasing participation in
the establishment of community policies and standards. There is
yet another story in this pattern of service; the skills developed by
Army lawyers are in great demand, and we shall read of their
service on behalf of other government agencies and the ease with
which they fit into civilian law teaching or other public service
upon separation or retirement from the Army.
The law for early courts-martial, as did colonial law, generally
reflected the intense moral tone of the period; but also as did the
civilian courts, Army courts suffered from a shortage of men
learned in the law. William Tudor was a lawyer, but John
Marshall did not go to law school until some years after his
experience as a judge advocate at Valley Forge. T h e effort,
however, was always toward current professional standards in the
military courts and this history of the Corps will show how the
military practice kept pace with and sometimes exceeded civilian
standards. This was particularly true of those areas of the criminal
law which protect individual rights. For example, the soldier had a
right to free legal counsel and to be advised concerning his right
to remain silent many years before his civilian contemporaries in
state courts.
The account of the progress of the Corps in the military
community and its influence on community standards also mirrors
developments "outside." Early criminal prosecutors in the United
States acted as today, in the name of "the people," and were
usually their elected representatives. The Army held no such
elections, but we will see how often its prosecutors and principal
legal leaders came from the community at large. This pattern has
largely disappeared because the demands of specialization in both
military science and law preclude mastery of two complex
disciplines by more than a few exceptional persons. Nonetheless,
the modern officer receives legal training at several points during
his career and the modem Army lawyer wears the same uniform,
faces the same promotion criteria, and receives the same advanced
military education as his brothers of the "line." This professional-
ism in two honored occupations is seldom duplicated outside the
military services, but raises its own set of new issues. Military
lawyers are in the forefront of a new emphasis on professional
ethics because of skills developed over the years in reconciling the
demands of discipline with the imperatives of justice.
Being in and of the military community provides the military
attorney opportunities for leadership comparable to those of his
civilian colleagues. Early in the Corps history its members became
concerned about the needs of accused persons for counsel at trial.
Today, the absence of counsel for a criminal accused would seem
incredible, but it was not in early 19th century America. The
Army's course of action, first by the trial judge advocate, then by
informal admittance of defense counsel to trials, is an interesting
and useful account of the growth of law and how the profession-
als in a community contribute by their striving for excellence.
When the custom culminated in a statutory right to counsel
provided by the government, the Corps had an important new
mission and Army practice was ahead of civilian standards.
The lawyer's role in the military community is also exemplified
in the history of the growth of the military attorney's functions.
He started as a prosecutor and administrator of the criminal
justice system, but today is a proper party in the making of nearly
all major decisions except those which are exclusively tactical.
There are international law implications in the development and
acquisition of new weapons systems; commercial and labor law
problems in equipping and feeding the Army; and environmental
law problems in using the vast real estate holdings of the Army, to
suggest a few examples. These increases in categories tell only
part of the story; within each group or "kind of law" there was
growth. In some, like international law, the growth was staggering
as the post World War I1 Army remained abroad in many places
and in large numbers. Peacetime relations with friendly foreign
countries involve an entirely different set of questions than do
relationships in wartime.
However, the military lawyer's business today remains people
oriented. Although criminaljustice work has decreased from all to
less than half of his function, he retains close contacts with Army
personnel as people by providing personal legal assistance to
servicemen, adjudicating their claims against the government, and
participating in human development and equal opportunity
programs. These community service activities are satisfying to
many officers, both from a professional and human point of view.
Opportunities for this kind of work have multiplied as the
members of the Corps were given increasing numbers of
assignments at lower levels of command, closer to "the troops."
Closeness to the military community is marked not only by
formal integration into, the rank structure and by the functions
just described, but also by the people who make up the Corps.
Army lawyers, at least since World War 11, have included fair
numbers of those emerging social groups which have been
making their influence felt in the American society. Women
lawyers, serving as Army officers, hold positions as teachers,
judges and Staff Judge Advocates, and officers from minority
groups abound.
One particular influence on the Corps is the dependence upon
the citizen-soldier in times of crisis. Typically, when the Army
expands to meet a crisis, Corps strength is doubled or tripled by
the influx of those Reservists and National Guardsmen who have
kept their military skills fresh while in civilian legal practice.
Thus, the Army lawyer is an officer who, with his military
colleagues, has been engaged in performance of the defense
mission since the nation began. The law the judge advocate
practices is more varied than most civilian lawyers ever see and
more professionally satisfying because more law than policy or
profit determines his conclusions. Judge advocates are unique
among the servants of the law, but not different in any way that
makes them less a lawyer or less a soldier. This is the military
lawyer's story.
In The Beginning
On June 14, 1775, the Second Continental Congress resolved
that 10 rifle companies should be immediately raised to the
southward to march north and join the New England forces
pthered around Boston. On the same day Congress appointed a
committee headed by George Washington, with Philip Schuyler,
Silas Deane, Thomas Cushing and Joseph Hewes as members, to
prepare the rules and regulations for the government of the
newly-created Continental Army. O n the 28th of June the
committee reported, and two days later Congress adopted a set of
69 articles for the regulating and well-ordering of the Army.
These articles were generally a copy of the then-existing code
governing England's "ministerial army" and, with slight modifica-
tion, reflected portions of the Massachusetts Articles of the
proceding April.
General George Washington assumed command of the 16,000
New England volunteers and militiamen beseiging Boston on July
3, 1775. He then established the General Headquarters of the
Continental Army at Cambridge. Meanwhile, in Philadelphia,
members of the Second Continental Congress turned to their
British model for further guidance in their task of regulating a
fledgling colonial army. British Article VI of Section XV of the
1765 Articles provided that "The Judge Advocate General, or
some person deputed by him, shall prosecute in His Majesty's
name." On the 29th of July, 1775, the Congress elected John
Adams' law pupil, the prominent Boston counsellor, William
Tudor, to be Judge Advocate of the Army, a $20 a month
position created that same day. An order issuing from General
Headquarters on the following day heralded the appointment and
directed that the Judge Advocate was "in all things relative to his
office to be acknowledged and obeyed as such."
* * *
WILLIAM
TUDOR
William Tudor was born in Boston on the 20th of March, 1750. He
entered Harvard at age 16 and earned his bachelor's degree in 1769. On
leaving the University, he chose the profession of law and was about to
enter the office of Mr. John Adams, then known as "the greatest lawyer in
the province," and later President of the United States. Adams once wrote
Tudor's father and described the youthful Tudor:
I know him to have a clear head and an honest, faithful heart.
He is virtuous, sober, steady, industrious, and constant to his
office. He is as frugal as he can be in his rank and class of life,
without being mean.
figure 1
As a youth Tudor was well known for his athletic abilities. It is related
that, when the waters around Boston were occupied by the British fleet and
all passage was dangerous, Tudor would nightly swim across the creek
between Chelsea and East Boston, his clothes in a bundle on his head, to
visit the lady who afterward became his wife.
After the British Army evacuated Boston, Tudor, then attached to
Washington's general staff, accompanied the Continental Army to New
York. It is related that the business of Judge Advocate was incessant during
the early years of the Continental Army. Among all the trials Tudor
prosecuted perhaps the most interesting was the court-martial of Colonel
Henley a t Cambridge in January of 1778. Colonel David Henley was
commandant of the garrison at Cambridge which also served as a prisoner
of war camp for the captured British General Burgoyne and his army.
Henley's troops were raw, undisciplined militia who were constantly taunted
by their British regular prisoners. It required a great deal of energy and
patience to suppress the British insolence. But Colonel Henley was
passionate and impetuous, and one day after a provocation by a British
corporal "and repeatedly ordering the man to be silent in vain, he seized a
musket and pricked him slightly with the bayonet." General Burgoyne
accused Henley of the "most indecent, violent, vindicative severity against
unarmed men, and of intentional murder." A court-martial was ordered and
General Burgoyne was allowed to take part in the prosecution. At trial,
Burgoyne attempted to establish that "a general massacre of the troops
under his command was apparently threatened." Tudor rebutted the charge
in his closing statement:
It has been said that Reeve's [the man wounded by Colonel
Henley,] behaviour was only firm, not insolent. British firmness
often so nearly approaches insolence, that Europeans as well as
Americans have been very apt to confound them. The Court will
recollect the ains taken In one or two instances during this trial,
to get from t\e British witnesses their idea of insolence. They all
affected to think it impossible a Briton could look insolent. It was,
they said, on1 l o o k ~ n gup. But this so sublime, this erect
countenance wlich they boast of, leads them to looking down
upon the rest of the world, though not always with impunity.
Britain is feared because she is powerful. What pity it is that a
nation cannot be just as well as gallant. Less pride had revented
the dismemberment of her em ire, had saved the %load
thousands: and real magnanimity Rad, ere this, arrested the hand
of
of destruction from the heads of men, whpse eatest fault (once
the glorious fault of Britons!) is the love of f r e e z m .
Tudor then alluded to the murder of Miss McCrea by Burgoyne's Indian
mercenaries:
But, says General Burgoyne, Colonel Henley's conduct has a
reat effect on his uards he was known to be no friend of the
British soldiers; he t a d himself wounded one and been violent in
his menances against them all; he thus influenced his soldiers to
stab and murder whom the pleased, if they belonged to the
British army; and ought &erefore to be considered as a n
accomplice in every outrage which took lace. If this reasoning is
conclusive by the same Iogc the General Rimself is an accessory to
all the murders repetrated by the ferocious bipeds, the savages,
who accompanieaand disgraced his army last summer. Ou ht it to
be said that because these black attendants knew that Eeneral
Burgoyne did not love Americans, that therefore he would be
pleased at the butchery of the nerveless old man, defenceless
emale, and infant prattler?--because he hated 'rebels,' he there-
fore influenced the Indians to massacre that young unfortunate,
the inoffending and wretched Miss McCrea!
Colonel Henley was acquitted by the court martial.
After having served nearly three years as Judge Advocate of the Army,
Tudor resigned his office and retired with the brevet rank of colonel. He was
commissioned as a magistrate in 1781 and served in that capacity throughout
the latter part of his life. Tudor was elected a representative for Boston in the
state legislature from 1791 to 1796; a state senator for Suffolk from 1801 to
1803; Commissioner of Bankruptcy in 1801 and 1802 ; Secretary of State of
Massachusetts in 1809; and Clerk of the Massachusetts Supreme Court from
1811 until his death on July 8, 1819.
* * *
On November 7, 1775, the same Congress which enacted the
"Rules and Regulations of the Continental Army" made certain
"additions, alterations and amendments" to the Articles." And in
January of 1776, "That no mistake in regard to the said articles
may happen," the 'Judge Advocate of the Army of the United
Colonies" was directed in orders from General Headquarters to
countersign each copy of the new Articles of War.
The Code of 1775 provided for a general and a regimental
court-matial, as well as for punishment "by order of the
commanding officer." The commander-in-chief or general had
full power of pardon and mitigation over sentences imposed by
the general court, while similar power was vested in the
regimental commanders with regard to sentences at the regimen-
tal court level. Judgments of the latter court required confirma-
tion by the commanding officer, who was not a court member;
while there was nothing said concerning general courts-martial in
this regard. Membership and procedural rules for courts-martial
were delineated. The death penalty was specifically authorized
only for giving the "watchword to unauthorized persons and for
compelling a commander to give up a fortification. Punishments
were not prescribed with specificity, but rather as a court-martial
"might order," "according to the nature of the offense" or "in the
court's discretion." Certain "additions, alterations and amend-
ments" were made to the foregoing "Rules and Regulations of the
Continental Army" in November of 1775. T h e action was
restricted to punitive articles in the Code, no doubt prompted by
the exigencies of the service premised upon months of field
service. The list of capital crimes grew to encompass such offenses
as corresponding with the enemy; mutiny, inciting to mutiny or
failure to suppress or report it; desertion to the enemy; striking a
superior officer or lifting up a weapon or offering violence;
misbehavior before the enemy or abandoning a post entrusted to
one's care or "inducing others to do like." A maximum of 39
lashes, to be laid on publicly with vigor, were prescribed for an
additional number of offenses.
A year after initial action on the 1775 Code-June 14, 177&
Congress resolved that "the Committee on Spies be directed to
revise the Rules and Articles of War." This committee was
composed of John Adams, Thomas Jefferson, John Rutledge,
James Wilson and R.R. Ldvingstone.
The suggested revision of the Articles was prompted in part by
General Washington, who submitted his amendments to the
committee through his Judge Advocate, William Tudor. Adarns
favored reporting the British Articles t o t a m verbis in that the
British and Roman systems "had carried two empires to the head
of mankind" and, accordingly "it would be vain for us to seek in
our own invention . . . for a more complete system of military
discipline." These American Articles of War of 1776 were
prepared by the committee and agreed upon by Congress on
September 20, 1'776. In his diary under that date, John Adams
refers to the version as "the system which he persuaded Jefferson
to agree with him in reporting to Congress." As offered by
Adams, the Articles were substantially a recasting of the 1775
Code, with some enlargements and modifications. They were
arranged according to the form of the British Code, containing
102 separate articles divided into 18 sections.
The Articles spoke for the first time of ". . . the respective
armies of the United States," omitting any reference to "the
Crown." Fines for profanity were increased from one-sixth to
"two-thirds o f - a dollar" and the maximum number of lashes
increased from 39 to 100. Punishments were still generally within
the court's discretion after considering the nature of the offense;
the death penalty was authorized for more offenses. New offenses
were added, such as: deserting the service of the United States,
sleeping on or leaving from one's sentinel post, doing violence-io
persons bringing provisions or necessities to camp, and leaving
one's post in search of plunder. Appeals from wrongs were
permitted, but as before, "if upon a second hearing, the appeal
shall appear to be vexatious o r groundless, the person so
appealing shall be punished at the discretion of the . . . general
court." Sentences of regimental courts were subject to confirma-
tion by the commanding officer, as heretofore, or by the garrison
commander. Added was the requirement that no general court-
martial sentence could be executed until "after a report shall be
made of the whole proceedings to Congress or to the General or
Commander-in-Chief of the forces of the United States, and their
or his direction be signified thereon."
The Articles further provided that the Judge Advocate General
(the title given to Tudor's office on August 10, 1776) "or some
person deputed by him, shall prosecute in the name of the United
States of America." Consequently, in those early days, the Judge
Advocate General was found personally conducting trials before
courts-martial or other appropriate military tribunals. Some of the
more important of the Revolutionary War prosecutions included
those against Major Generals Benedict Arnold, Charles Lee and
Philip Schuyler.
figure 2
figure 3
Massachusetts court before which he had defended the British
soldiers charged with homicide after the Boston Massacre.
However, legal costs were high and court procedures restrictive;
few criminal defendants had any counsel at all, and busy lawyers
like William Livingston of New York City could practice a whole
year without defending one criminal case.
This time was 80 years before the Fourteenth Amendment to
the Constitution and more than 150 years before the effects of
that amendment were felt in state cburt criminal proceedings.
Frederick Bernays Wiener (Col., JAGC, Ret.) has pointed out that
the right to counsel, search and seizure rules, and protection
against self-incrimination were matters for the states to decide,
under the prevailing morality. Many judges of the post-Colonial
period were untrained in the law and there were few legal reports
through use of which practices in one court could influence
others. Courts-martial conducted by prominent laymen in the
military community who applied law reflective of prevailing
community standards thus were not much different from their
contemporary civilian counterparts.
During the period of legislative action on their new Articles, the
United Colonies had declared their independence and become the
United States of America. In addition to Mr. Tudor's new
designation as Judge Advocate General, he was accorded the rank
of lieutenant colonel in the Army of the United States on August
10, 1776. Colonel Tudor resigned as Judge Advocate General on
April 9, 1777, but remained in the service for another year before
returning to the civilian practice of law. He was succeeded by
John Laurance of New York.
* * *
JOHNLURANCE AND THE REVOLUTION
John Laurance of New York served as a staff officer and "Regimental" in
General Alexander Macdougall's First New York Regiment, and as an aide-
de-camp to General Washington prior to his appointment as Judge
Advocate General of the Army on April 10, 1777.
According- to records at the Reference Library 0-f the New York Historical
Society, Laurance (whose name has been the vicitm of various spellings
within military literature) signed his name on his personal letters and
manuscripts as indicated.
As Judge Advocate General he played a significant role in several notable
courts-martial. General Charles Lee requested a trial by court-martial after
being reprimanded by Washington on the battlefield at Monmouth.
~ e n ~ r aScott
l s and Wayne charged that the disastrous retreat at Monmouth
was solely Lee's fault. kpparentiy Lee had given neither of his generals any
instructions until the retreat had already taken place. Washington held Lee
personally responsible and stated that Lee would answer to the Army, to
Congress and to the world for his conduct-to which General Lee replied
". . . You cannot afford me greater pleasure than in giving me the
opportunity of showing to America the insufficiency of her respective
figure 4
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87 _# I&
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figure 5
accused shall enjoy the right to have the assistance of counsel for
separate and feel the influence of the rays of truth and justice,
provided that the accused should have the benefit of counsel, how
accusations !efore a civil court. Is there any reason that can apply
counsel should be admitted in the one case and not incthe other?
which yet is allowed him for every petty trespass?' May I not ask
;!?of man before a military court, which yet is allowed him before
Hull's request was denied and the trial proceeded. Upon the conclusion of the argu-
ment by the special judge advocate, Hull presented his defense which consisted of a long
speech most probably written in large part by his counsel. The court-martial found
General Hull guilty and sentenced him to be shot to death. However, President Madison
took note of the court's recommendation for clemency in consideration of Hull's rev-
olutionary war services and advanced age, and he remitted the execution of the sentence.
Two Wars and an Intervening 30 Years'
Peace
As war with England became inevitable, Congress, by the Act of
January 11, 1812, authorized the raising of 10 regiments of
infantry, two of cavalry, and provided that a judge advocate
should be appointed to each division "who shall be entitled to the
same pay and emoluments as a major in the infantry, or if taken
from the line of the Army, shall be entitled to thirty dollars per
month in addition to his pay, and the same allowance for forage
as is allowed by law for a major of infantry." On September 26,
1812, Thomas Gales became the first of 16 wartime appointees.
More than a year after passage of the Act, a half-dozen more
judge advocates received appointments, including: Evert A.
Bancker of New York, Philip S. Parker (who subsequently became
Recorder of Albany, New York), Robert Tillotson, John S. Willis,
James T. Dent of Georgia and Stephen Lush. In 1814, five
additional judge advocates entered upon their duties. One of
these, Henry Wheaton, became the great publicist whose distin-
guished career embraced the posts of Professor of Law at
Harvard, American Minister to Denmark and Prussia, and
Reporter to the United States Supreme Court (almost every
lawyer recalls citations to "Wheat."). Another judge advocate,
Major Auguste Davezac, served in that capacity with Andrew
Jackson's army at the defense of New Orleans, and later became
charge' d'affaires to the Netherlands. The list of 1814 appointees
was completed by the names of Rider H. Winder of New York,
Leonard M. Parker and Samuel Wilcox.
HENRYWHEATON,
*
JUDGE ADVOCATE
* *
Perhaps best known of the judge advocates who served during the War of
1812 was Henry Wheaton. The distinguished authority on international law
was appointed Division Judge Advocate of the Army on October 26, 1814.
He remained in the service for nearly a year after the war, as judge
advocate of the Third Military District (southern New York and part of New
Jersey). Of Wheaton's service as the reporter for the United States Supreme
Court, Daniel Webster commented, "No reporter in modern times has
inserted so much and so valuable matter of his own." Wheaton's Reports
were later to become the subject of a civil suit which Wheaton himself
1
34
argued. In the Case of Wheaton u. Peters it was dec~dedthat "no reporter has
or can have any copyright in the written opinions delwered by this court."
As a recognized jurist, Wheaton also presided as Chief Justice of the Marine
Court
Upon h ~ sappointment as charge' d'affawes to Denmark, Wheaton em-
barked on a career in diplomacy Hls first task, and a delicate one at that,
was to negotiate with the Danish Government an agreement of indemnity
covering the seizure of American vessels. The resultant treaty was utilized as
prototype for similar treaties made with France and Naples. As a minister to
Prussia, Henry Wheaton negotiated an agreement establishing commercial
relations with the states of the Prussian Customs Union. He is perhaps best
noted for his monumental treatise, Elements of Intonational Law, concerning
the sources of international law and the absolute international rights of
states in their pacific and hostile relations.
* * *
In addition to reenacting the Rules and Articles of War,
Congress, in the Act of March 3, 1813, authorized the "Secretary
of the war department" to prepare "General Regulations" for the
governance of the Army. It was provided that these regulations,
when approved by the President, were to be respected and
obeyed until altered or revoked by the same authority. At the
close of the second war with Britain, an Act of April 24, 1816,
provided "that the regulations in force before the reduction of the
army [which had been effected by an act approved March 3,
18151 be recognized . . . subject, however, to such alterations as
the Secretary of War may adopt with the approbation of the
President." Thus, the General Regulations of the Army were
given all the binding force of military law, provided, always, that
they were consistent with the Constitution and laws of the United
states.
The Act of April 24, 1816, "for organizing the general staff,"
increased the number of judge advocates to three per division,
with the same rank, pay and perquisites as before. Additional
officers procured under this legislation, listed in order of
appointment, were: William 0. Winston, Thomas Hanson, Samuel
A. Storrow and John L. Lieb.
Although judge advocates apparently served with tactical divi-
sions during the War of 1812, after the Army reverted to its
peacetime posture in June of 1815, they were assigned as judge
advocates of the two territorial divisions (Northern and Southern)
into which the country was then divided for military purposes.
Later, during the period from 1816 to 1818, when three JA's
were authorized Der territorial division, these officers acted as staff
judge advocates hf some of the 10 districts (later called "depart-
ments") into which the Northern and Southern Division wers
subdivided.
The Army was decreased from 62,674 to 12,383 troops by the
Act of March 3, 1815. Some three years later, April 14, 1818, the
number of judge advocates per division was again reduced to one.
Stockley D. Hays of Tennessee accepted a judge advocate
appointment some five months later, receiving the pay and
emoluments of a topographical engineer (ie., major of cavalry)
provided for by that legislation. A further reduction in military
strength-the Act of March 2, 1821-brought the force level to
6,126, but made no provision for judge advocates. As a result,
Major Storrow of Massachusetts, last judge advocate of the
Northern Division (who was either reappointed or retained after
the 1818 legislation) and Major Hays, last judge advocate of the
Southern Division, were honorably discharged on the 1st of
June, 1821. The Army did not have a full-time statutory judge
advocate again until 1849.
Between 1821 and 1849 there were no statutory enactments
relating to Judge Advocates. The military legal structure and
administration of the Army was given no recognition on the War
Department General Staff although that body included some ten
staff departments and staff-corps. Nevertheless, the Army contin-
ued to concern itself with matters of military law. The regulations
of 1835 stated: "The discipline and reputation, of the Army, are
deeply involved in the manner in which military courts are
conducted, and justice administered." Additionally, the regulations
emphasized that officers who sat on courts-martial were to "apply
themselves diligently to the acquirement of a competent knowl-
edge of military laws; to make themselves perfectly acquainted
with all orders and regulations, and with the practice of military
courts." Under this interim arrangement, a line officer was usually
appointed to act as a temporary judge advocate, prosecuting
general courts-martial on an ad hoc basis. Other officers were
detailed as acting judge advocates of the major territorial
commands (from 1821 to 1837, the Eastern and Western
Departments; thereafter the Eastern and Western Divisions).
Available records indicate that the administration of military
justice and the responsibility for advising the general staff on legal
matters were not uniformly exercised. At times the Secretary of
War or the General-in-Chief of the Army might request opinions
on various matters from the Attorney General of the United
States. Additionally it appears that many of the generals-in-chief
during this time were either lawyers or officers familiar with the
law, no doubt serving as their own legal advisors to some extent.
Jacob Brown, General-in-Chief from 1815 to 1828 studied some
law; Alexander Macomb, General-in-Chief from 1828 until 1841,
while an engineer by profession, published treatises on martial law
and court-martial procedure; Winfield Scott, who served as
General-in-Chief for the next two decades was a member of the
figures 8 and 9
figure 10
COLONEL
ROGERJONES'DISRESPECT
AS ADJUTANT
GENERAL
EARNED
HIMTHE GENERAL-INCKIEG'S
ENMITYAND A COURT-MARTIAL
Undaunted, and perhaps educated by the experience, Jones
published the aforementioned Army Regulations of 1835, describ-
ing the duties of the judge advocate and outlining various court-
martial procedures-it was acknowledged as one of the finer
treatments of the subject. He also wrote several opinions between
December 21, 1842 and August 28, 1842, regarding certain
irregularities in courts-martial procedure. But starting in 1843,
Colonel Jones detailed an officer of the line to his office
designated as "Acting Judge Advocate of the Army" to assist him
in the legal functions that he had assumed. The first of these
officers, serving from February 8, 1843 until March 11, 1847, was
First Lieutenant Samuel Chase Ridgley, an 1831 West Point
graduate from the Maryland 4th Artillery.
THE"LEONIDAS" LETTERS
* * *
Gideon J. Pillow was by his very nature a politician. He delighted in
undercover political manipulations, but held no civil office himself-
figure 11
figure 12
FRONTIER
HEROJOHN C. FREMONT WAS CHARGEDWITH MUTINY
FORHIS ROLE IN THE ESTABLISHMENT
OF A GOVERNMENT
FOR
CALIFORNIA
return to Fort Leavenworth, and a court-martial was ordered for November
2, 1846, at Washington Arsenal, now Fort McNair.
Fremont \\>ascharged with mutiny, disobedience of orders, and conduct to
the prejudice of good order and military discipline. Most of the specifica-
tions related to Fremont's refusal to recognize Kearney's authority, but one
peculiar specification referred to Fremont's purchase of White or Bird's
Island (now Alcatraz) obligating the government for $5,000. For counsel,
Fremont enlisted the services of his father-in-law, the well-known United
States Senator Thomas Hart Benton. Benton's courtroom antics were later
to be the cause of much concern for court-martial president General George
M. Brooks. Captain John Fitzgerald Lee served as the trial's judge advocate.
The much publicized trial took an inordinate amount of time. The court
adopted the time-consuming practice of clearing the courtroom for each
minor decision. Further, the daily sessions were limited to five hours.
One such incident which delayed the trial for some period of time
occurred on January 8, 1847. Kearney became very disturbed at the conduct
of Benton, although Benton by custom was not allowed to address the court
in his capacity as defense counsel. Kearney rose and stated:
Mr. President. Before the court is cleared I want to make a
statement.
I consider it due to the dignity of the court, and the high
respect I entertain for it, that I should here state that, on my last
appearance before this court, when I was answering the questions
y p o u n d e d to me by the court, the senior counsel of the accused,
homas H. Benton, of Missouri, sat in his place making mouths
and grimaces at me, which I considered were intended to offend,
to in&, and to overawe me.
The president of the court stated that he regretted very much to hear it
and read the 76th Article of the Rules and Articles of War regulating
conduct in the courtroom.
Benton responded:
Fremont was found guilty of all charges and dismissed from the service.
The decision went to President Polk for review, with seven of the members
of the court recommending clemency.
Polk released his findings on February 16, 1848:
Law
figure 14
commander in time of war before the date of this Act could order
into execution any sentence in any case, except those in which a
general officer was accused. The 1862 Act had a real and
"
persistent effect--the Judge Advocate General began to exercise
an appellate function.
~ h internal
6 Corps developments of this period were oversha-
dowed by what was probably the closest brush with politicization
of the Judge Advocate General's position in our history. The
Army needed a new Judge Advocate General and the importance
that President Lincoln placed on the office was shown by his
selection of Joseph Holt, an eminent statesman and lawyer, to fill
that post. T h e issue concerning jurisdiction of the military
commission over civilians accused of nonmilitarv crimes had
become a wartime political matter-and the ~residkntlooked to
Holt, a former Secretary of War and Postmaster General, to
successfully push his pol&ies favoring extended control over the
civilian population in the North.
JOSEPHHOLT:PRESIDENT
*
L~NCOLN'S
*
ARMYLAW=
*
Born in Breckenridge County, Kentucky, on January 6, 1807, Joseph Holt
obtained his education at St. Joseph's College and Centre College. He read
law in a law office, began practice in 1831, and rose to prominence as an
attorney. Under President Buchanan, Holt served as Commissioner of
Patents, the Postmaster. General and finally as the Secretary of War.
Although he supported Douglas for the presidency, he began a very close
association with Abraham Lincoln upon the latter's election. With the
outbreak of the Civil War, Lincoln became involved with Congressional
leaders in a struggle over war powers. His policies with respect to treatment
of political prisoners were challenged by legislation introduced by Senator
Lyman Trumbull. Lincoln wished to arrest citizens suspected of disloyal
activities and hold them in prison by suspending the writ of habeas corpus.
As a result, the President t k n e d to ~ o l to
t promote his policy of military
control over civilian political prisoners or civilians accused of non-military
crimes; Lincoln then appointed Halt Judge Advocate General of the Army
and elevated him to the rank of brigadier general.
Holt set to work to establish the jurisdiction of the "military commission"
so that persons ordinarily not subject to court-martial jurisdiction could be
tried by a military body. Military authorities were thus enabled to arrest and
imprison civilians previously tried exclusively in civil courts. In the Yallandi-
gham case in 1864, the United States Supreme Court "taking its opinion
bodily from the argument of Judge Advocate General Holt" refused to
review the decisions of military commissions. But in 1866, upon the
termination of the war and any need for trying citizens by military bodies,
the Supreme Court in the famous case of Ex parte Milligan held that where
civil courts were available, civilians would not be tried by military authorities.
General Holt continued the practice begun by Judge Advocate General
John Laurance of personally conducting the most sensitive trials. In addition
to the famous trial of General Fitz-John Porter for disobedience of orders,
Holt also prosecuted at the trial of Confederate prisoner of war camp
commandant Henry Wirz.
Soon after the trial and execution of the Lincoln assassins-where Holt
again played's major role in the prosecution-the general was implicated in
a plot to subvert justice at their trial. A wave of revulsion swept the country
when it became known that thcre were instances of gross perjury by
government witnesses; that evidence had been suppressecl - ( ~ ; l t had
withheld Booth's diary); and that the J u d g e Advocate General h a d
purportedly withheld from President Andrew Johnson a recommendation
for clemency in the case of Mrs. Surratt, another convicted assassination
conspirator. Holt spent a great deal o f personal effort in attempting to
vindicate himself from what appeared to be a spurious accusation.
Prior to his death, President Lincoln had tendered Holt the office of
Attorney General, which he declined. Holt a1.w declined the cabinet position
of Secretary of War offered him by President Grant. Holt was brevetted a
major general for his faithful, meritorious and distinguished services during
the Civil War, and in 1875, at his own request, he was placed on the retired
list of the Army.
* * *
It was one day after Holt's appointment on September 3, 1862,
that JAG records reflect the resignation of John Fitzgerald Lee-a
man who apparently adhered firmly throughout to his former
figure 15
L A W ~ ZINR BLUE
~
figure 16
War. Professor Albert Taylor Bledsoe, as the first chief of the war office,
was responsible for Departmental review of court-martial proceedings. An
1830 graduate of the United States Military Academy, Bledsoe was a cadet
with Jefferson Davis and Robert E. Lee. For a time, he practiced law in
Springfield, Illinois, in the same courts as Lincoln and Douglas, but
succumbed to a desire for the profession of teaching and thereupon
accepted a position at the university of Virginia. A S - a colonel &the
Confederate Army, Bledsoe was sent to England at the outbreak of the Civil
War to influence British opinion for the southern cause. His deep emotion
and Confederate fervor were voiced long after the end of the war when he
edited the Southern Review. As the fiery protagonist of a lost cause, his
writings represented the attitudes of the unreconstructed southerner in the
magazine dedicated to "the despised, disfranchised, and downtrodden
people of the South." .
John A. CampbellSupreme Court Justice . . . and Other Confederate JA's
John A. Campbell of Alabama succeeded Albert Taylor Bledsoe as the
head of military justice in the Confederate cabinet. A graduate of West
Point and member of the Alabama bar, Campbell had achieved a nationwide
reputation for his legal attainments by 1853. At the age of 42, he was
appointed an associate justice of the United States Supreme Court by
President Pierce. At the beginning of the war, Judge Campbell stepped
down from his seat on the Court and took up the practice of law in New
Orleans. Upon Bledsoe's resignation, Confederate Secretary of War Ran-
dolph prevailed upon Campbell to accept the War Office post. During his
two and half years as the Assistant Secretary of War he paid special
attention to the administration of conscription laws in addition to reviewing
court-martial proceedings. Campbell was a member of the unsuccessful
peace commission which met with Lincoln and Seward at Hampton Roads.
After the war he founded a lucrative law practice and argued several
notable cases before the Supreme Court.
Some other notable attorneys who wore the Confederate gray served the
South as leaders of infantry and cavalry. A lawyer who practiced at Rocky
Mount, Virginia, until the outbreak of the Civil War, Jubal A. Early reached
the rank of lieutenant general and is most noted for his attempt to capture
the Union capital at Washington. The "Gray Ghost," John Singleton Mosby,
leader of partisan rangers and noted for his daring capture of General
Stoughton and 100 others at the Fairfax Court house, acted as a judge and
administrator of the Confederacy in Northern Virginia. After the war, he
practiced law at Warrenton, Virginia, and served in the Department of
Justice.
* * *
With a few modifications-none affecting the types of courts-
martial-the Confederate Provisional Congress adopted the Arti-
cles of War and the Army Regulations of the United States to
constitute the military law of the Confederate Army.
The jurisdiction of the courts-martial under the Articles of War
extended to all officers and enlisted men in the service of the
Confederate States, whether of the Regular Army, the Provisional
Army, the Volunteers, or the Militia. The judge advocate, or some
person deputed by him or the appointing authority, prosecuted in
the name of the Confederate States, but in a limited sense he also
represented the accused. He summoned the necessary witnesses,
organized the courts-martial by swearing in the members of the
court, and was then sworn in himself by the president of the
court. When a prisoner refused to plead, the trial proceeded as if
he pleaded not guilty. The accused had the right to challenge any
member for cause. Witnesses were examined on oath or affirma-
tion. Except in capital cases, the deposition of nonmilitary
witnesses could be taken before a justice of the peace and read in
evidence, provided both the prosecutor and the accused had due
notice of the taking. The president of the court-martial conducted
the court, speaking for it where the rule was prescribed by law,
regulation, or its own resolution. He kept order and conducted
business, securing to all members equality in deliberation. In
balloting, the voting began with the junior member and pro-
ceeded in inverse order of seniority. The findings and sentence in
noncapital cases were fured by a simple majority of the court; but
concurrence of two thirds of the members was necessary to the
imposition of the death penalty. Sentence was carried into effect
upon approval of the proceedings by the appointing authority,
save in cases affecting a general officer and, in time of peace only,
affecting loss of life or commission. In the excepted cases,
Presidential approval was required. The power to order sentences
into execution carried with it power to pardon the offender or to
mitigate the punishment.
Every court-martial was required to keep a complete and
accurate record of each case. The proceedings had to show that
the court was organized according to law; that the court and
judge advocate were sworn in the presence of the accused; and
that previously the accused had been interrogated and responded
on the matter concerning any objection to members of the court.
A copy of the appointing order was incorporated into the
proceedings. No recommendation could be included in the body
of the sentence. Only members concurring in the recommenda-
tions signed them. The evidence and documentary exhibits,
properly identified, were stitched to the proceedings. The original
copy, duly authenticated by the signatures of the president of the
court and the judge advocate, were forwarded to the adjutant and
inspector general of the Army, War Department, Richmond,
Virginia, with the cover marked "Judge Advocate."
In the fall of 1862, General Lee recommended the establish-
ment of a new type of military tribunal, a permanent court in
each Army corps. An act passed by the Confederate Congress
provided for the organization of one military court in each Army
corps, to be composed of three judges with the rank of colonel
and one judge advocate with the rank of captain. Jurisdiction of
the courts extended to all offenses cognizable under the Rules
and Articles of War, offenses proscribed by a law of the State or
the Confederate States and to all offenses cognizable under the
customs of war. Although the establishment of the permanent
court system did not preclude appointment of courts-martial by
proper authority, the tendency of the Confederate legislature was
to vest exclusive jurisdiction over most crimes in the permanent
courts.
President Jefferson Davis' selection of personnel for the military
court system is worthy of note. While the judges were generally
chosen for their judicial attainments, preference was given, as far
as the range of choice permitted, to those who had been wounded
or disabled in the military service. Among the latter may be
mentioned James Conner, member of the military court for the
Second Army Corps of the Army of Northern Virginia. Conner
had been wounded while commanding a brigade as a senior
colonel in Ambrose P. Hill's division. In civilian life he was
Confederate States attorney for the District of South Carolina.
Because of the import 'of the Civil War upon the American
conscience, a development took place which would have as
profound and lasting effect upon the other civilized nations of the
world as the United States Constitution itself has had during the
past two centuries. The unique experience of Americans fighting
Americans, alienated not by economic status or class but rather by
ideals and geography, brought about a keen awareness of the
nature of a war now being visited upon relatives and fellow
countrymen, rather than just upon a faceless "enemy." Thus, for
the first time a need was felt for uniform guidance relating to the
laws of war for the Army in the field.
Until that time there' had been no uniform treatise to guide
either commanders or men in the field. The Union Commander,
General Halleck, called upon Dr. Francis Lieber, professor of
international law at New York's Columbia Law School, to prepare
guidance on the law of war. In 1862 Dr. Lieber responded with a
treatise on guerrilla warfare. One year later, as principal drafts-
man on a five-member revision committee, Lieber devised new
regulations on the usages of war-subsequently adopted by the
United States as the Instructions for the Government of Amzies of the
United States in the Field, General Orders N o . 100 (April 24, 1863).
* * *
DR. FRANCIS
LIEBER:FATHEROF A JUDGEADVOCATE
GENERAL
AND THE LAWS
OF WAR
Ironically, the first attempt to codify the laws and usages of war for the
guidance of the United States Army was made by an outcast of the Prussian
autocracy. The Instructions for the Governmeni of Annies of th United States in the
Field, General Orders No. 100 (April 24, 1863) has become known as the
Lieber Code in honor of its principal draftsman, Dr. Francis Lieber.
Francis Lieber was born in Berlin, Germany, o n March 18, 1800. After
receiving his Ph.D. from Jena in 1820 and a short participation in the Greek
War of Independence, he was arrested in Berlin on charges of political
disaffection. Upon the intercession of the Prussian Ambassador to Rome, he
was released after a confinement of six months. In 1826 Lieber made his
way secretly to England and then to the United States.
Shortly after hi6 arrival in America, ~ieber'became a naturalized citizen
and embarked on a career of distinguished accomplishment. He devised a
plan for the publication of an encyclopedia and soon thereafter founded
and edited the Encyclopedia Americana (1829-1833). His work brought him
into contact with leading educators and lawyers and secured for him a
position 'as Professor of History and Political Economy at South Carolina
College (now the University of South Carolina). Later, from 1865 until his
death in 1872, Dr. Lieber taught international law, civil law and common
law at the Columbia Law School in New York.
The American Civil War struck Lieber, as it did many Americans, as a
personal tragedy. His three sons fought in the conflict: Oscar Montgomery
Lieber eventually died of wounds received while fighting for the Confeder-
acy; Hamilton Lieber, a Union Volunteer lost a n arm at Fort Donelqn.
However, Guido Norman Lieber, who fought in the Union infantry, later
served as the Army's Judge Advocate General.
Dr. Lieber's selection by General Halleck (himself a student of interna-
tional law) proved t o be a worthy one. As a preamble to his monumental
work,. Dr. Lieber wrote Guerilla Parties Considered with Reference to the Laws
and Usages of War. The product of Secretary Stanton's revision g r o u p
composed of Lieber and Generals Cadwalader, Hartsuff, Hitchcock and
Martindale-was transmitted to General Halleck on February 20, 1863,
barely two months after the beginning of the project. The work of Lieber,
with some additions and omissions by the "generals of the b o a r d under the
command of Major General Hitchcock, was adopted by the United States as
the Instructions for the Gouenzmmt of Annies of the United States in the Field,
General Orders No. 100 (April 24, 1863).
General Order No. 100-since known as the Lieber Code-consisted of 10
sections dealing with such topics as military necessity, retaliation, prisoners
of war, hostages, spies, exchanges of prisoners, and flags of truce. Of special
significance was the fact that the Lieber Code was not confined to the
conflict which occasioned it-being generally adopted by the German
government for the conduct of hostilities in the Franco-Prussian War. But
most importantly, Dr. ~ieber'sclassic legislation had a profound influence
on the drafters of the Hague Convention of 1899 Respecting the Laws of
War and, later, on the Hague Regulations of 1907.
The "Lieber Code" represented the first codification of the laws of war
issued to a national army for its guidance and compliance.
* * *
Aside from advances in the formulation of laws of war, the
Civil War brought a number of other changes in American
military law. Until 1863, the Articles of War did not include
common law crimes of violence unless they were prejudicial to
"good order and military discipline." The Civil War Draft law of
March 3, 1863, included what was to become Article of War 58 ip
the 1874 revision. It read:
In time of war, insurrection, or rebellion, larceny,
robbery, burglary, arson, mayhem, manslaughter, mur-
der, assault and battery with an intent to kill, wounding,
by shooting or stabbing, with an intent to commit
murder, rape, or assault and battery with an intent to
commit rape, shall be punishable by the sentence of a
general court-martial, when committed by persons in
the military service of the United States, and the
punishment in any such case shall not be less than the
punishment provided, for the like offence, by the laws
of the State, Territory, or District in which such offence
may have been comkitted.
As the War of Rebellion wound down, two other historic trials
received national attention. Judge Advocate General Holt and
several of his Army lawyers, figured prominently in the Lincoln
assassination trials, and the case against the commandant of the
Confederate prison camp at Andersonville, Georgia.
show that, u p to the very close of that prison, there were no steps
figure 21
THERENOCOURTOF INQUIRY
The Battle of the Little Big Horn, in which the popular and spectacular
General George A. Custer, together with every officer and man of five
companies of the 7th Cavalry were exterminated by hostile Indians,
occurred on the 25th and 26th of June 1876. Few events in American
history have more profoundly shocked the American people, or have caused
more controversial discussion and debate. Almost immediately after news of
the disaster reached the press and public, efforts to find the responsible
parties were initiated in many quarters.
Failing in attempts to pin the blame on General Terry, who was in general
charge of the operation, and on the morning of the 27th relieved the
survivors of the regiment, Custer's partisans turned upon Major Marcus A.
Reno, the regiment's second in command, and upon Captain Frederick W.
Benteen, the senior captain, to both of whom weie assigned three-company
battalions on the 25th of June. Despite their desperate struggle some four
miles distant from Custer's battlefield, Reno and Benteen were accused of
cowardly failure to go to his relief. Reno's chief critic, Frederick Whittaker
demanded that a court of inquiry be convened to settle the issue once and
for all. When Major Reno concurred in the demand, a court was convened
at Palmer House, Chicago, on the 13th of January 1879, to determine
whether Reno's conduct at the Little Big Horn was cowardly or incompe-
tent.
In an exchange with the recorder (acting judge advocate) First Lieutenent
Jessee M. Lee, Reno testified as to his relations with General Custer:
Q. The'question is, did you go into that fight with feelings of
confidence or distrust.
A. My feelings toward Gen. Custer were friendly.
Q. I insist that the uestion shall be answered.
A. Well, sir, I had % n o i n Gen. Custer a long time; and I had no
confidence in ,his ability as a soIdier, I had known him all through
the war.
figure 22
figure 23
Whittaker explained that during the previous night he had been attacked
by three masked men who half strangled him, sliced his earlobes, a n d
hacked his hair. His attackers, he went on, had bound his hands and feet
and had left with the warning, "Cry out, o r speak of this affair, and you are
a dead man." Fearful of calling for help, Whittaker continued, he struggled
for some minutes then fell unconscious.
It was the Commandant's opinion that Whittaker had mutilated himself,
bound his own hands and feet, faked the state of unconsciousness and even
written himself a threatening letter. The Superintendent called Whittaker
before him and asked him to refute the Commandant's findings. Whittaker
demanded a court of inquiry.
Thus began a two-year legal process; a military court of inquiry appointed
by the Superintendent was followed by a general court-martial convened at
the order of President Rutherford B. Hayes-the whole lasting from April
of 1880 until July of the following year. The court of inquiry was composed
of Academy faculty members. The press corps was also there in force, for
Whittaker had become front page news even before the hearing began.
During the inquiry, two diametrically opposed scenarios of the mysterious
affair were put forward, that of the "prosecution" and that of Whittaker
himself. The prosecutor contended that the black cadet, fearful of being
found delinquent in his final examinations, and counting on a ground swell
of public opinion in his favor which would assure his commissioning despite
any academic shortcomings, had cleverly staged the whole business. He
urged that the cadet be brought before a court-martial on dual
charges of conduct unbecoming a cadet and of perjury. Meanwhile,
Whittaker's contentions held firmly to the elements of the three masked
assailants (the inference being clear enough that they were cadets) and to
the idea that the grotesque punishment they had visited upon him
demonstrated the virulence of the feeling against him, a repugnance and
enmity of which his silencing and social o;tra&m were but lesser manifesta-
tions. The arguments on both sides emphasized two aspects of the case:
whether or not Whittaker had written the warning note himself and
whether or not his state of unconsciousness when found was genuine, or
had been cleverly feigned. At the close of the inquiry, the very tribunal
which Whittaker had asked to clear him ended by finding against him.
Whittaker was placed in quarters arrest and dropped almost immediately
from the public's attention.
O n the 20th of January 1881, the court-martial of Cadet Whittaker
opened. On hand to represent Whittaker was Daniel H. Chamberlain, a
successful New York lawyer. He was Massachusetts born, a graduate of Yale
and of the Harvard Law School, and an officer of the 5th Massachusetts
Colored Cavalry who had been nourished his whole life on abolitionist
principles. A postwar resident of South Carolina, he was once its governor
(1874-1876). On the government side stood Major Asa Bird Gardiner. As a
captain of the New York Militia in the Civil War he had won the Medal of
Honor, and, in 1873, by then an officer of the Judge Advocate General's
Department, had organized West Point's Department of Law. General
Nelson ~ i l e took
s the chair as president of the court.
An extended trial began on February 3d and lasted until June. The
proceedings generated some 9,000 pages of testimony, but were little more
than a rehash of the court of inquiry-with even more longwinded,
elaborate, and conflicting testimony from handwriting "experts." Through-
out the proceedings Gardiner, seeking to highlight inconsistencies in the
black cadet's story, showed himself an insistent and dogged questioner of
Whittaker. The young black, on his part, responded with what seemed to
observers to be "careful evasiveness." Chamberlain was at his best in arguing
that Whittaker had no convincing motive for mutilating himself; that he had
been in no real danger of academic dismissal. The New York lawyer was
persuasive in arguing that Gardiner had failed to prove his case and that the
burden of proof lay upon him, not upon the defense. It was by no means
sufficient, Chamberlain maintained, merely to show that Whittaker could
have staged the whole affair. What was necessary was proof that he indeed
had done so.
On 10 June the court announced its decision. With some changes in the
charges and specifications as originally written, Whittaker was found guilty
of self-mutilation, of himself writing the threatening note, but not guilty of
the charge that he had done these things to bring discredit upon West Point
and escape the J u n e examination. T h e court sentenced him to be
dishonorably discharged, to be fined $1.00 and to be confined at hard labor
for a year. General Miles and five others of the court urged clemency in
light of Whittaker's youth and inexperience. Six months later, the Judge
Advocate General, David Swaim, in a review of the case for Secretary of
War Robert Todd Lincoln, demolished the Army's case-holding that the
court-martial was illegal.
In March of 1882, President Chester A. Arthur reviewed Whittaker's case.
In briefs submitted to the President, the Attorney General and Judge
Advocate General Swaim cited probable errors in the court-martial proceed-
ings due to the admission at trial of certain letters written by Whittaker and
used as handwriting evidence. President Arthur concurred and the case was
thrown out on legal grounds. Secretary of War Lincoln, however, ordered
Whittaker's dismissal from the Military Academy on grounds of academic
deficiency.
* * *
While Swaim's action in the Whittaker case demonstrated the
growing appellate function of the office of Judge Advocate
General, the true test of Swaim's personal legal acumen came in
1884. It was then, because of alleged improprieties in his conduct
of a business transaction, that he himself faced court-martial
charges. Swairn was prosecuted by one of his own subordinates-
Major Asa Bird Gardiner-and ultimately was found guilty.
* * *
THE COURT-MARTIAL OF A JUDGE ADVOCATE GENERAL: BRIGADIER GENERAL
DAVIDG. SWAIM
satisfied with the results of the case. Noting inconsistencies between the
sentence and the findings of the court, the President twice returned the case
to the court for revision. Accordingly, on February 16, 1885, the court met
and adjusted the sentence to suspension from "rank and duty for twelve
years and to forfeit one half his monthly pay every month for the same
period." President Arthur's reluctant approval of this final sentence is
worthy of note:
CHESTER A. ARTHUR
During the next 10 years Srvaim sought vindication through administra-
tive channels and the courts. However, it was not until December 3, 1894.
that the unexecuted portion of Swaim's sentence was remitted and he was
consequently retired on the 22nd of December of that year.
figure 25
ASABIRDGARDINER
ASA BIRDGARDINER--ADVOCATE AND WARHERO
The descendant of a colonial family which settled in America in 1638, Asa
Bird Gardiner studied law at New York University, and was admitted to the
bar in 1860. At the outbreak of the Civil War he relinquished his legal
practice and assisted in recruiting a regiment of Volunteers. As a first
lieutenant he first served in the field in Virginia in a skirmish at Fairfax
Court House. As a captain he led the advance of the Army of the
Susquehanna with a company of Volunteers from Sporting Hill, Pennsylva-
nia to Carlisle. He was wounded in the bombardment of Carlisle by J. E. B.
Stuart's command. In 1863-before becoming a judge advocate officer-he
was awarded the nation's highest honor for valor in combat when he
received the Medal of Honor for his actions at the Battle of Gettysburg.
In 1873 Gardiner was appointed a judge advocate, United States Army,
with the rank of major, by President Ulysses S. Grant. In 1878 he
represented the in the retrial of Major General Fitz-John
Porter. He served as president of the military commission which investigated
the summary execution of 22 Union soldiers by the Confederate command-
ing general in Ohio. Gardiner conducted the successful defense of Sergeant
James Clark, 23d U.S. Infantry, charged with the murder of a military
convict. In the court of inquiry investigating the conduct of General G. K.
Warren at Gravelly Run and Five ~ o r k s he;epresented
, General Grant and
General Sheridan as counsel. As counsel for the War Department, he was
involved in six cases of great importance before the Court of Claims
concerned with the validity of adverse decisions by the Treasury Depart-
ment. In 1870, as a member of an Army board, Colonel Gardiner went to
Canada to investigate the military prison discipline of the British Army.
Gardiner also the court-martial of cadet Whittaker, the black
West Pointer, and had the distinction of conducting the case against his
immediate superior, Judge Advocate General Brigadier General David G.
Swaim for dubious financial transactions.
Aside from obvious achievements as an advocate, Asa Bird Gardiner
published several works in the field of military law: Jurisdiction and Powers of
the United States and State Courts m Reference to Writs of Habeas Corpus as
Affecting the Army and Navy (1867); E v i h c e and Practice in Military Courts
(1875); Practical F o m for Use in Court-Martial and Remarks as to Procedure
(1876). Gardiner was elected District Attorney of New York City in 1897,
and held that office until 1900 when he resumed the private practice of law.
Guido Norman Lieber was born in Columbia, South Carolina, on May 21,
1837, the son of Dr. Francis Lieber, celebrated author of the "Lieber Code."
He was graduated from South Carolina College in 1856 and received his
LL.B. from Harvard Law School in 1858.
After admission to the New York bar, he practiced until the outbreak of
the Civil War. In 1861 he was commissioned a first lieutenant in the 11th
U.S. Infantry, Regular Army. H e remained an infantry officer for a year
and a half, serving with McClellan during the Peninsular Campaign. O n
June 27, 1862, he was breveted a captain for his "gallant and meritorious
service" in the Battle of Gaines Mill. Captain Lieber also served at the
Second Battlc of Bull Run.
In November of 1862 he was offered an appointment as a judge advocate
of Volunteers. Lieber accepted the position and was appointed as a major.
O n May 28, 1864, Major Lieber was decorated again for "gallant and
meritorious service" for the Red River Campaign in Louisiana. He received
the brevet rank of lieutenant colonel of Volunteers in March of 1865 for
faithful service during the War of Rebellion. Electing to remain in the Army
after the war, the future Judge Advocate General was made a major in the
Regular Army in 1867.
In 1881, the Judge Advocate General of the Army, Brigadier General
McKee Dunn, retired, and Major David G. Swaim was promoted and
appointed Judge Advocate General. His assistant was Colonel Guido
Norman Lieber. Three years later, General Swaim was court-martialed for
improper conduct in a business transaction and sentenced to suspension
from rank and duty for a period of 12 years. While General Swaim retaind
the title, thereafter Colonel Lieber actually performed all the duties of the
Judge Advocate General and was appointed Acting Judge Advocate General
in 1884. In December of 1894 the remaining portion of General Swaim's
sentence was remitted, and he was allowed to retire. Shortly thereafter, G.
Norman Lieber was appointed a brigadier general and named Judge
Advocate General of the United States Army.
General Lieber retired on May 21, 1901, after serving 40 years in the
Army, 16 of which were as head of the Judge Advocate General's
Department, the longest tenure held by any Judge Advocate General
General Lieber is well known as the author of Remarks on the Army
Regulations (1898, perhaps better known as Lieber on Amy Regulations) and
T h Use of the A m y zn Aid of the Civil Power (1898). In addition, General
Lieber published several articles on military law and related fields.
G. Norman Lieber died on April 25, 1923, in Washington, D. C.: he was
85. His excellent library of both history and military law continues to serve
the Corps as a part of the library of The Judge Advocate General's School
in Charlottesville, Virginia.
* * *
Several amendments were made to the Code of 1874. Of
importance, on September 27, 1890, punishment "left to the
discretion of the court-martial" was eliminated, it being provided
instead that such punishment %hall not, in time of peace, be in
excess of a limit which the President may prescribe." An Executive
Order embodying a table of maximum punishments followed on
the 16th of February, 1891. Winthrop emphasized that this Act
applied only to enlisted persons and grew from a general
dissatisfaction with the variations in sentences for desertion. The
summary court-martial was established on the 1st of October
1890, to try cases in time of peace then. cognizable by garrison or
regimental courts. An accused was permitted to object to trial by
summary court, in which event he could be tried by a regimental
or garrison court. Amendments in 1892 stated that no court-
martial sentence was to be carried into execution until approved
by the officer who ordered the court, or the officer commanding
at that time. No sentence by a field officer detailed to try soldiers
of his regiment was to be carried into execution until approved by
the brigade commander, or-in case there was no brigade
commander-by the commanding officer of the post or camp. It
was further set out that when the court-martial sat in closed
session, the judge advocate was to withdraw; and when his legal
advice or assistance in referring to recorded evidence was
required, it would be obtained in open court.
Readers of the foregoing text and vignettes of celebrated 18th
and 19th century Army courts-martial undoubtedly have noted
that as the Judge Advocate General's Department prepared to
enter the 20th century many of the safeguards found in today's
court-martial system were still not present.
One of the primary reasons for this phenomenon was that, in
the thinking of the period, the court-martial was not actually a
judicial body, but, instead, an executive agency. In Dynes v.
Hoover, 61 U.S. (10 How.) 65 (1857), the Supreme Court had held
that military courts were not part of the federal judiciary under
Article 111, but merely agencies of the Executive under Articles I
and 11. It was therefore felt that constitutional limitations placed
upon the federal courts were not applicable to the military
tribunal. The significance of Dynes and other cases of the period
was central to one of the great controversies in the literature
about military jurisprudence. The Hamard Law Reuiew in 1957
and 1958 contained articles by Gordon Henderson and Frederick
Bernays Wiener which stated exhaustive views on the constitu-
tional history and issues involved.
During the period from 1869 to 1883, William Tecumseh
Sherman had served as Commanding General of the Army.
Remembered for his enunciation of the infernal nature of
warfare, he had definite ideas about military justice as well.
Sherman was trained in the law, and in 1879 told a Congressional
committee that:
I agree that it will be a grave error if by negligence
we permit the military law to become emasculated by
allowing lawyers to inject into it the principles derived
from their practice in the civil courts, which belong to a
totally different system of jurisprudence.
The object of the civil law is to secure to every
human being in a community all the liberty, security,
and happiness possible, consistent with the safety of all.
The object of military law is to govern armies composed
of strong men, so as to be capable of exercising the
largest measure of force at the will of the nation.
These objects are as wide apart as the poles, and each
requires its own separate system of laws, statute and
common. An army is a collection of armed men
obliged to obey one man. Every enactment, every
change of rules which impairs the principle weakens the
army, impairs its values, and defeats the very object of
its existence. All the traditions of civil lawyers are
antagonistic to this vital principle, and military men
must meet them on the threshold of discussion, else
armies will become demoralized by engrafting on our
code their deductions from civil practice.
By today's standards the procedural shortcomings of the
court-martial system were several--but as will be seen, most of
these gaps were closed by later Congressional enactments. The
function of the Judge Advocate General as supervisor of the
system and the trend toward engrafting the safeguards of civilian
practice onto military procedures were, however, fured by this
time. The rest was but a question of "how much".
Most of the crimes in successive enactments of the Articles of
War had been listed without any attempt to define the elements
of the offense. The essential elements, such as intent and act
required, were matters derived from custom. It is interesting to
scan the 25th chapter of Winthrop's Military Law for its reference
to the Code of Gustavus Adolphus, etc. As noted, there was no
statutory maximum penalty for any crime, except for a limitation
as to the death penalty-and punishments before 1890 were
imposed under the statutory language: "shall be punished as a
court-martial may direct".
The court-martial process was begun by the preferral of
charges by an officer, not necessarily the commander of the
accused. There was no early right to an independent pretrial
investigation recognized in the Army because the Fifth Amend-
ment specifically excepted cases arising in the land or naval forces
from the right to grand jury indictment. However, by the late
19th century Army regulations required the post commander or
the commander of a unit in the field to, upon receipt of charges,
"make such personal investigation as is sufficient to satisfy him (a)
whether the case is one in which a trial is necessary to the interests
of discipline; [and] (b) if such trial is believed by him to be
necessary, whether the evidence in support of the charges is such
as to warrant a conviction".
The court-martial was considered a command function and the
commander was expected to use it to maintain order and
discipline. There was a three-tiered hierarchy of courts which
could be convened at different command levels. Each court-
martial type had restrictions on the punishment it could impose,
and on the rank of the officer empowered to assemble it as
"convening authority". The hierarchy of courts permitted subordi-
nate commanders to discipline their own men, allowing higher
courts-martial to be used only when a subordinate commander
had sent the case up his chain of command, or a superior
commander wanted a court-martial of higher degree.
The commander's role in military jurisprudence was pervasive:
all court-martial functions were carried out by him through his
subordinates. The commander made the determination whether
to court-martial, appointed all court-martial personnel (including
the court and counsel), oversaw the administration of the trial and
reviewed the decision and sentence. As "appointing authority" the
commanding officer selected the court members from among the
officers under his command with no real restriction on the
method of selection used (originally only line officers could be
appointed, with such officers as surgeons and chaplains excluded;
later in this century, the selection process was expanded to allow
all commissioned officers to serve, but not enlisted men). There
was no set number of court members-nly a minimum number
was required. The commander had the power to remove or
replace court members, even during trial, so long as the number
never fell below the minimum.
There was no judge in a court-martial. The traditional judicial
functions were divided among the prosecutor-judge advocate, the
senior court member-president, and the court members them-
selves. The president oversaw the trial, while the judge advocate
carried out many administrative and the remainder of the judicial
duties such as the swearing in of witnesses and advising the court
as to legal matters. The court itself determined all issues arising
during the trial, such as motions for continuance, objections to the
competency of a witness or the admissibility of evidence-usually
voting secretly on such matters.
The nature of a court-martial trial was somewhat different
from its civilian counterpart. There were few rules of evidence as
we know them today. The court members took an active role in
the trial, at times questioning the accused and witnesses, recalling
witnesses, and calling upon the judge advocate to have any
uncalled individual ordered to testify as a witness. The decision of
the court was not announced since it was only considered final
after examination by the appointing authority in his capacity as
"reviewing authority-and he had the power, even in instances of
acquittal, to return the case and require the court to deliberate for
a different verdict or a different sentence. The commander as
reviewing authority provided the only available post-trial examina-
tion of a record in peacetime except in those cases involving a
sentence of dismissal of an officer, death, or those involving
generals, where it was provided that the sentence should not be
executed without the confirmation of the President.
The growth of military law toward conformity with civilian
practice by custom and regulation, as well as by statute, is
nowhere better exemplified than in the development of the
accused's right to counsel before courts-martial. Early 19th century
writers such as McArthur in England and Benet in the United
States were quite clear about the accused's very limited "privilege"
to have counsel present with him in court. He had a privilege to
have counsel present, but it did not include permission to speak!
However, by the middle of the classical period Winthrop could
say that an accused's request to have counsel present would be
acceded to "as a matter of course" whether counsel was military or
not and whether a professional person or not. In fact, Govern-
ment Order 29 of 1890 required commanders to appoint "a
suitable officer" as counsel upon request in general court cases.
The old rule-Winthrop called it humiliating-which permitted
counsel to be present but not to speak, had by this time been
largely abandoned and custom permitted counsel to engage freely
in the examination of witnesses or argument. The reality of this
custom may be observed in territorial orders cited by Winthrop
which contained criticisms of counsel detailed under Government
Order 29 for "perfunctory or indifferent" performance of their
duties. In such cases, says Winthrop, it was proper for the court-
martial to recess and petition the appointing authority for
replacement.
These, generally, were the conditions of the Army and its
justice system as the armed forces were about to be thrust into
their role in the overseas expansion of the United States.
Appointment of Volunteer officers for the war with Spain was
authorized by the Act of April 22, 1898. That legislation provided
that each Army corps should have a judge advocate with the rank
of lieutenant colonel. A total of 21 judge advocates comprised the
Department during the Spanish-American War.
Less than a year later, the Act of March 2, 1899 resulted in a
slight temporary expansion of the Department by authorizing the
retention in service of five judge advocates of Volunteers with the
rank of major. Another section of that Act stated that "no person
in civil life shall hereafter be appointed a judge advocate . . . until
he shall have passed satisfactorily such examination as to his
moral, mental, and physical qualifications as may be prescribed by
the President, and no such person shall be appointed who is more
than forty-four years of age . . ."
Congress continued its practice of prescribing manning levels in
detail, for the Department. The Act of February 2, 1901, set the
strength at one brigadier general as Judge Advocate General, two
colonels, three lieutenant colonels, six majors, and one acting
91
judge advocate with the rank and pay of captain, mounted, "for
each geographical department or tactical division not provided
with a judge advocate" commissioned in the Department. The
acting judge advocate's tour of duty was four years, and he could
not be reappointed without serving two years with the arm in
which he was permanently commissioned.
figure 27
COLONELWILLIAMF. FRATCHER
(JAGC, RET.), NOTEDLAW
WASCORPSHISTORIAN
PROFESSOR, DURINGWORLDWARI1
figure 28
figure 29
JOHN W. CLOUS:GERMANIMMIGRANT, HEROAND
GE-I-~YSBURG
TJAG FOR TWO
DAYS
the single most important figure of this era-and the entire 19th
century-was Colonel William Woolsey Winthrop.
COLONEL
WILLIAM
WINTHROP
In an American Bar Association Journal article entitled "Colonel William
Winthrop: The Tradition of the Military Lawyer," future T J A G t h e n
Major George S. Prugh described Winthrop's life "like a Wagnerian opera"
through which ran several constant themes.
The first of these themes describes him as a man taking part
in the great American transition, from the minor key of the
struggling nation just before the Civil War to the hopeful
crescendo closin the S anish-American War and opening the new
century. Flushef with tRe sudden realization of its importance, its
flexing muscles giving notice to all the world of its reat new
powers, the United States b 1899, when Winthrop d i e t had just
com leted a half century o l t h e most amazing progress known to
the Eistory of the world. Insignificantly, unaware that he, too, had
a part in the making of that progress, Winthrop had moved along
with the score until the twent~ethcentury was just in sight.
The second theme is a steady one-it recounts the story of the
loyal public servant; the devoted, nose-to-the-grindstone, day-today
plugger, who bows to the routine of his profession, but never loses
s~ghtof his larger purpose.
The third $erne is the tragic one-Winthrop's fate always to be
the "also-ran, forever the "Indian" and never the "chief."
figure 30
Articles of War
figure 31
B. DAVIS
GEORGE
Infantry, left their Army garrison near Brownsville and ran amuck through
the town firing into homes and stores. One townsman was killed and two
were wounded, one of whom was Brownsville's lieutenant of police. The
incident apparently was precipitated by racial tension between the townspeo-
ple and the black units which had recently arrived at nearby Fort Brown. In
the two weeks prior to the affray there were several incidents involving
white townspeople and the black troopers. The incident was immediately
investigated by the commanding officer of the 25th Infantry, Major Charles
Penrose. He concluded that, although the specific raiders could not be
identified and none would come forward to admit guilt, the raid was
definitely perpetrated by members of his command. O n August 18, 1906,
Major ~ u & i u s Blockson investigated the matter for the ~nspectorGen-
eral's Office of the Department of Texas. Companies B, C, and D were
immediately removed to Fort Reno, Oklahoma. In September of 1906, the
incident was again investigated by Lieutenant Colonel Leonard A. Loverling
of the Inspector General's Office, 4th Infantry, and by the Cameron County
Grand Jury sitting in Brownsville, In October, Brigadier General Ernest A.
Carlinton, the 1 n G c t o r General of the Army, visited Companies B, C, and
D at Fort Reno and further investigated the matter. The finding of each
Army investigation was that certain members of Companies B, C, and D
raided and fired upon the town of Brownsville. The grand jury, however,
returned no indictments. None of the members of the swcific units ever
came forward either to identify themselves as participants, o r to offer any
evidence-r to incriminate any of the other members of the units. Each
investigating officer recommended to the Secretary of War that all of the
men in Companies B, C , and D be discharged without honor from the
Army. On November 9, 1906, by direction of President Theodore Roosevelt,
Special Orders Number 266, War Department, discharged 167 members of
Companies B, C, and D, 25th Infantry, from the Army without honor and
forever barred them from re-enlisting in the armed forces, as well as from
employment in any civil capacity under the government.
The controversial Special Orders Number 266 touched off a public outcry
and heated debate in the United States Senate. In December of 1906, Major
Blockson and Assistant United States Attorney Milton D. Purdy reinvesti-
gated the matter on behalf of the War Department. In a message to the
Senate on January 14, 1907, President Roosevelt reaffirmed the discharges
made by Special Orders Number 266, but revoked that portion of the order
which barred the discharged members from civil employment under the
government. He again called on those discharged to come forward and
identify the guilty parties.
In February of 1907, Major Penrose, the commanding officer of the 25th
Infantry, was tried by general court-martial on two counts of neglect of duty
(failure to take proper measures to prevent the affray, and failure to detect
the perpetrators), and he was acquitted. At the same time, Captain Edgar A.
Macklin, the Officer of the Day o n August 13, 1906, was tried by general
court-martial on one charge of neglect of his duties and acquitted.
Beginning in February 1907, and continuing until March 1908, the
Military Affairs Committee of the United States Senate conducted a full
reinvestigation of the incident. The committee took testimony from 169
witnesses. The transcript covered over 3,000 pages, including numerous
exhibits. The committee sustained the action of Special Orders Number 266.
Although the committee's findings did not fix responsibility on any
individual soldier, it found that the soldiers of the garrison were responsible
for the shootings.
O n the 2d of March 1909, President Roosevelt signed a Senate Bill
creating a court of inquiry to determine whether those discharged by Special
Orders Number 266 were qualified for re-enlistment in the Army of the
United States. The court of inquiry met for over a year and considered over
13,000 pages of testimony and exhibits. In its findings, announced on
March 28, 1910, the court unanimously found the evidence sustained the
charge that soldiers of the 25th Infantry did, on the night of August 13-14,
1906, shoot into the houses of the town of Brownsville, Texas, occupied by
men, women and children, killing one man, and seriously wounding the
lieutenant of police and killing the horse under him. The court also found
that, had the officers and noncommissioned officers performed their
respective duties immediately prior to the affray, the shooting could have
been avoided. Also, if immediately after the shooting a careful inspection of
every man in the garrison had been made, some of the guilty men would
have been discovered. The court further found that 14 of the originally
discharged 167 men should be eligible for re-enlistment.
After the adjournment of the court in 1910, there were several attempts
to renew the investigation and review the discharges of the remaining
Brownsville soldiers. The matter was reopened by the Department of the
Army in 1973 and on September 28th of that year the Army cleared the
soldiers' records and changed their separations to honorable discharges.
* * *
On the 14th of February 1911, another West Point cavalry
officer, Colonel Enoch H. Crowder of Missouri, succeeded Davis
as Judge Advocate General.
figure 33
figure 34
ASSOCIATE
JUSTICEOF THE SUPREMECOURTAND RESERVEMAJOR
JUDGEADVOCATE,FELIXFRANKFURTER TJAG CROWDER
ASSISTED
WITHWARTIME MILITARY
LEGALPROBLEMS
Francisco and the infamous Bisbee Deportations when local law enforcement
officials shipped striking miners from Arizona to New Mexico. In 1933
Frankfurter declined an appointment to be Solicitor General but in 1939 he
could not refuse Roosevelt's invitation to the Supreme Court bench. From
there he went on to become one of the more noted constitutional jurists o f
this century.
Frankfurter's relationship with General Crowder in the earlier days was
not only as a friend, but as a working associate as well, Frankfurter was
often asked to help resolve problems in the War Department relating to
minority groups, conscientious objectors and industrial relations. As a major
in the Reserve Corps of the JAGD, Frankfurter also worked with General
Crowder on the revision of the Articles of War. Crowder once asked
Frankfurter's opinion on the American seizures of the customs house at
Vera Cruz.
Frankfurter, I want you to help me. I've just been over to the
White House and I'm asked to wrlte a memorandum whether that
seizure should be treated as an act of war and what its status is in
international law. Will you work wkh me on that?
Frankfurter re lied General, I'm going to ask to be excused. I
don't have to
You do?
wag on.that. I know the answer to that.
Yes, I do.
What is the answer?
It would be an act of war against a great nation; it isn't against a
small nation.
I can't give him that.
I know you can't, but that's the answer.
While serving in the Judge Advocate General's Office, Frankfurter never
put on a uniform. In his memoirs, he elaborated on why he wore only
civilian clothes:
'The reason I didn't want to go into uniform was because I
knew enough about the doings in the War Department to know
that every pipsqueak Colonel would feel that he was more
important than a Major . . . As a civilian I could get into the
resence of a General without saluting, clicking my heels, and
gaving the Colonel outside say, 'You wait. Hek got a Colonel in
there.
Edmund Morris Morgan
Edmund Morgan, a lieutenant colonel in the Judge Advocate General's
Department during World War I, later assisted in drafting the Uniform
Code of Military Justice. Morgan taught law at the University of Minnesota,
Yale University, and was twice Acting Dean of the Harvard Law School.
During World War 11, Colonel Morgan, as Chairman of the War Labor
Board's war shipping panel, reviewed wage adjustment cases for merchant
seamen. In 1948 Secretary of Defense Forrestal appointed him chairman of
a four man committee to draft a modern and uniform code of military
justice. T h e Morgan draft was adopted by Congress two years later.
Morgan's Cases and Materials on Evidence' ranks as one of the outstanding
casebooks in the field of evidence. Professor Morgan-nce President of the
Association of American Law Schools--was also a contributing member of
the advisory committee to the United States Supreme Court on the Rules of
Civil Procedure.
Dr. Eugene Wambaugh
A distinguished professor of constitutional law at Harvard University,
Eugene Wambaugh's talents were well utilized during his tour as Chief of
the Constitutional and International Law Division, Office of the Judge
Advocate General, from 1917 to 1919. A graduate of Harvard Law School
in 1880, Wambaugh worked on war problems while serving as the special
counsel to the State Department in 1914, and was the American member of
the Permanent International Commission under the treaty with Peru in
1915. Wambaugh later achieved the distinction of Professor Emeritus at
Harvard University in 1925.
John Henry Wigmore
John Henry Wigmore was born on March 4, 1863, in San Francisco,
California. He received an A.B. degree from Harvard in 1883 and M.A. and
LL.B. degrees from the same institution in 1887. Wigmore began his
teaching career with three years as a lecturer in Anglo-American law in
Japan. In 1893, he became Professor of Law at Northwestern and was made
Dean eight years later.
When he applied for an Army commission in 1916, John Wigmore was at
the peak of his career. In addition to having been Dean of the Northwestern
University Law School since 1901, his authoritative treatise on evidence had
already been published. He had organized and headed the National
Conference on Criminal Laws and Criminology, which later became the
American Institute of Criminal Law and ~rimihologyunder his continuing
guidance. He was completing a term as President of the Association of
American University Professors. However, in spite of these imposing
qualifications, he entered military service with the rank of major.
After being placed on active duty in 1917 he was sent to Washington.
General Enoch H. Crowder, the Judge Advocate General of the Army had
been given the additional title and office of Provost Marshal General during
this time. When called upon to assist Crowder in the administration of the
Selective Service draft, Major Wigmore was given the title, "Chief, Statistical
Division, Office of The Provost Marshal General." During this assignment
he originated and placed into execution the general plan of statistical tables
concerning classification deferment, industry and agriculture which were
employed in the raising of our military forces. Over 10 million registrants
were screened and classified under the system devised by Major Wigmore.
In addition to organizing the Selective Service draft, Major Wigmore
performed many other duties. He did liaison work with nearly every
government agency in Washington. He was also a member of the War
Department Committee on Education and Special Training which organized
the Student's Army Training Corps. This committee was responsible for
recommending desirable or necessary changes in the system of classifying
enlisted personnel and in coordinating with educational institutions in the
organization and administration of the Student's Army Training Corps
program.
In recognition for his services, Wigmore was promoted to lieutenant
colonel in early 1918 and to the rank of colonel later that year. Discharged
on May 8, 1919, he was awarded the Distiguished Service Medal "for
exceptionally meritorious and distinguished service to the Government in
connection with the administration of the Selective Service Law during the
war."
Wigmore served as a member of the Board of Editors which revised and
enlarged the Manual for Courts-martial, authoring and later expanding the
chapter on evidence in the 1917 and 1921 Manuals. His efforts in these
projects merited him the only chapter byline bestowed in the two Manuals,
and he also received special acknowledgment in the preface of both. After
his work on the 1921 Manual, Wigmore was again relieved from active duty
on October 25, 1920. However, as the nation's foremost expert on military
and industrial mobilization, the Army had Wigmore attached to the Army
General Staff as part of its post-war mobilization plans.
Wigmore wrote several law review articles growing out of his military
experience. In addition, he prepared the bibliography and preface for
Militaq Law and Wartime Legzslation (19 19).
While not eligible for retirement benefits, he retained his status as a
Reserve Officer, signing his last oath of office in 1940 at the age of 77.
Three years later, on April 20, 1943, John Henry Wigmore died. He is
buried in Arlington National Cemetery, Washington, D.C.
* * *
The civilian talent brought to the JAG Department by mobiliza-
tion was integrated into the performance of the burgeoning
variety of legal tasks falling to the Judge Advocate General. This
considerable pool of resources permitted continuation of Depart-
ment contributions in fields other than criminal justice and
engendered increased reliance on the Army attorney by his
commanders. The story of the increase of the Army commander's
consciousness of legal problems and of his reliance on his
uniformed attorney is the measure of the growth of the
community'role of the Corps.
Concern with international law and relations had begun with
the Lieber Code in 1863 and was continued by General Davis
when he participated influentially in the several early conferences
on the law of war at The Hague and Geneva. Winthrop's Digest of
Opmions reflects the Department's broadening activities in connec-
tion with contract law and administration of the Army. And there
was in World War I a predecessor to the Soldiers' and Sailors'
Civil Relief Act of 1940 which was to become the foundation for
one of the major new missions of the Corps-free legal counsel to
the individual soldier about his personal affairs.
Many of these areas of increased activity are reflected in the
service rendered by those mobilized for the war effort. Those
officers served in combat with distinction, dealt with foreign
governments on behalf of U.S. military interests, assisted with the
mobilization for war, and advised in the exercise of the full range
of their commanders' legal military powers. That breadth of
contribution is reflected in the accompanying vignettes of the
careers of Patrick J. Hurley, Charles Beecher Warren, Nathan
William MacChesney and "Iron Pants" Johnson.
* * *
OTHERWORLDWARI JUDGEADVOCATES
Patrick J. Hurley
Born in the Choctaw nation, Indian territory (now Oklahoma) Patrick J.
Hurley went to work first as a mule driver and then as a cowboy. Having
studied Law at the National University, Washington, D.C., he represented
the Choctaw tribe as its national attorney from 1912 to 1917. Commissioned
a major in the Army at the outbreak of World War I, he served in France as
judge advocate, Army artillery, 1st Army. He took part in the Aisne-Marne,
St. Mihiel, and Meuse-Argonne battles, receiving a Silver Star for gallantry.
After the Armistice, as judge advocate, 6th Army Corps, he secured
permission from the Grand Duchy of Luxembourg for U.S. troops to march
across Luxembourg in order to occupy Germany. Hurely succeeded James
William Good as Secretary of War in President Hoover's cabinet and also
chaired the War Policies Commiss~on,a nonpartisan body to prepare
national policies in time of war. As a Reserve colonel at the outbreak of the
figure 35
J. HURLEY:
PATRICK SPEC~AL
EMISSARY,AMBASSADOR
TO CHINA,
SECRETARY
OF WARAND WORLDWAR I JUDGE ADVOCATE, ENJOYS
OF HUMORIST
T H E COMPANY WILLROGERS
Second World War, he was called to active duty. Promoted to the rank o f
brigadier general in 1942, he was ordered to the Southwest Pacific to "direct
efforts to run the Japanese blockade of the Philippines with supplies for
General Douglas MacArthur's forces o n Bataan peninsula." Hurley was
wounded in the Japanese bombing attack on Port Darwin, Australia, but he
recovered quickly and was appointed United States Minister to New
Zealand.
General Hurley acted several times as a special emissary to the parties at
war. At the request of the President, he conducted a special mission to
Moscow to consult Stalin, and at the same time made an evaluation of the
Stalingrad and Caucasus battlefields. He participated in both the Cairo and
Tehran conferences where he held the rank of Ambassador. Advanced to
major general in December of 1943, Hurley was sent to Chungking to help
prevent the collapse of the nationalist government of China and keep the
Chinese Army in the war. After service as the U.S. Ambassador to China, he
was awarded the Medal for Merit by Secretary of War Patterson for his
efforts in China. He died on the 30th of July 1963.
Charles Beecher Warren
An 1891 Phi Beta Kappa graduate of the University of Michigan, Charles
Beecher Warren represented the United States as an associate counsel in
hearings before the joint high commission for the Bering Sea controversy
with Great Britain. Commissioned a major in the Judge Advocate General's
Department at the outset of World War I, he was assigned as General
Crowder's Chief of Staff while the latter was Provost Marshal General. In
that capacity Warren formulated and directed regulations administering the
selective service Act. After the war he embarked on a successful career as
an emissary and diplomat, first acting as the legal adviser to the American
delegation at the Paris Peace Conference. In 1921 he was appointed by
President Harding as Ambassador to Japan. After having served as a high
commissioner to Mexico to reestablish normal diplomatic ties, Warren was
named Ambassador to Mexico by President Coolidge in 1924. He was also
twice nominated as United States Attorney General but was never confirmed
due to political controversy between the Senate and President Coolidge.
Nathan William MacChesney
Cited by General Pershing "for exceptionally meritorious and conspicuous
service" as a member of the American Expeditionary Force commander's
staff, Nathan William MacChesney additionally served as chief of the section
which reviewed dishonorable discharge cases in France. He represented the
War Department in the U.S. Supreme Court case of Steams v . Wood which
upheld the power of the Secretary of War to control the military forces of a
state by executive order. MacChesney, a life trustee of Northwestern
University, is also known as the father of that university campus. He was
appointed Minister to Canada in 1932 by President Hoover and also served
as Consul General to Thailand. And while an attorney for the government,
MacChesney was counsel for the United States Senate in the investigation of
several notorious political frauds. In 1951 he ended his extensive military
career retiring at the rank of brigadier general. He died in Libertyville,
Illinois, September 25, 1954.
Hugh S. "Iron Pants" Johnson
A graduate of the United States Military Academy, Hugh Johnson's
bluntness and straight-from-the-shoulder language earned him the nick-
name "Iron Pants." He served as General Pershing's judge advocate in 1916
during the Mexican punitive expedition. Two weeks after the Selective Draft
Bill was passed at the outset of the First World War, Johnson was appointed
major, j;dge advocate, in charge of the draft. Hugh S. Johnson isperhaps
best known as the administrator of the National Recovery Act where he gave
popularity to such phrases as "crack-down," "bunk," "chisler," and "dead
cats." As the NRA head Johnson supervised the publication of more than
450 codes for the regulation of business in the nation's recovery program.
* * *
The First World War soon demonstrated that the 1916 revision
of the Articles of War had not eliminated many of what were
then considered major faults in the military justice system. The
Articles had not been drafted to govern an Army of 200,000
officers and nearly four million men. It was to be expected that
the conditions of such an unprecedented World War would show
many areas in which the existing code might be improved. The
criticism was directed principally toward three points: (1) that the
system was almost wholly i; the control of line officers without
legal training and who were frequently harsh and arbitrary; (2)
figure 36
figure 37
THEHOUSTON RIOTS
No other event during the First World War portended such vast change
in the review of court-martial proceedings as the trial of the black troopers
of the 24th Infantry in late 1917. Throughout that summer there were
frequent racial confrontations between the soldiers acting as guards for the
construction of a training camp and the city police and townspeople of
Houston, Texas. Most of these incidents consisted merely in applying
epithets of opprobrium to each other, sometimes resulting in a soldier's
arrest.
Matters came to a head in August 23, when two black soldiers were
arrested by the local constabulary in Houston for disorderly conduct.
Rumors quickly reached the soldiers' camp that one had been killed by the
police. The enraged soldiers raided their unit supply tents for weapons and
ammunition and marched out of camp into Houston. During the next
several hours, 15 white men, civilians, police officers and National Guards-
men were killed by the mob of black soldiers proceeding through the streets
of the city. At one point the troopers halted the rioting to determine
whether to carry the carnage further downtown o r return to camp. When
the majority decided to infiltrate back into camp, the leader of the riot, a
Sergeant Henry, perhaps cognizant of the fate awaiting the mutineers, took
his own life.
TJAG BETHELADVOCATED
JA INSIGNIA
WITH A ROMAN SWORD
AND BALANCE-THISWAS A SHORT-LIVED
CHANGE IN CORPS
HERALDRY
again represented the mihtary character of the JA mission; the
balance on the scales was the symbol of justice.
The change, however, was not popular in the Department. A
few officers procured the new insignia in anticipation of the
effective date of the new regulations, but most did not. Shortly
after General Betel's retirement in November 1924, members of
the Corps were canvassed for their views on the insignia. Most
wanted to return to the crossed sword and pen.
When Colonel John A. Hull succeeded Bethel, one of his first
acts was to procure a rescission of the still-proposed change in
insignia. The sword and pen crossed and wreathed were retained
as the insignia of the Judge Advocate General's Department (now
Corps). It has remained so ever since and is proudly worn by
officers in every part of the globe where American troops are
stationed-the respected symbol of the JA.
Colonel Hull, who had been judge advocate of the Services of
Supply, American Expeditionary Forces in France, became The
Judge Advocate General on November 15, 1924.
* * *
MAJORGENERAL JOHNA. HULL
John A. Hull was born in Bloomfield, Iowa, on the 7th of August 1874,
and graduated from the University of Iowa with a Ph.D. in 1894. He earned
a law degree from Iowa one year later. Hull served through the Spanish-
American War and the Philippine campaigns as a judge advocate of
Volunteers in the grades of major and lieutenant colonel. At age 26 he was
appointed a major, judge advocate, in the Regular Army, and became
known in the service as the "Boy Major." He served at various higher
headquarters in the United States and in the Philippine Islands during the
next 17 years. At the beginning of the First World War he was on duty as
judge advocate of the Central Department, Chicago, Illinois. Soon after-
wards he was placed on special duty, which lasted until January 20, 1918, in
connection with prosecution of the "Houston Riot Cases," mentioned earlier.
On February 8, 1918, then a colonel, Hull sailed for France where he
organized
- and became the Director of the Rents, Requisitions and Claims
Service, American Expeditionary Forces at Tours, France. From November
27, 1918, to August 9, 1919, he was chief of the Finance Bureau, A.E.F., at
Tours. Immediately thereafter, he returned to the United States and was on
duty in Washington, D.C. in various capacities, until he was appointed The
Judge Advocate General with the rank of major general on November 16,
1924. He served as Judge Adyocate General for four years, retiring from
the Army at his own request at the age of 54. Afterward, he served for
several years as an associate justice of the Supreme Court of the Philippine
Islands.
* * *
It was during Hull's term as The Judge Advocate General that
the famous court-martial of Brigadier General William Mitchell,
Assistant Chief of the Army Air corps, took place.
* * *
THECOURT-MARTIAL OF BRIGADIER GENERAL WILLIAM "BILLY"MITCHELL
During the First World War the name of "Billy Mitchell" became a
household word. He was the first American officer to fly over enemy lines
and the first to be given the French Croix de Guerre. Always a man of action,
Mitchell became the outstanding US. combat air commander of the war. In
September of 1918 he commanded a French-U.S. air armada of almost
1,500 planes, the largest concentration of air power u p to that time. This
powerful force helped the U.S. 1st Army wipe out the St. Mihiel salient. In
the subsequent Meuse-Argonne campaign, Mitchell, promoted to brigadier
general in October 1918, used formations of up to 200 planes for mass
bombing of enemy targets. His aggressive tactics reflected not only his
character but also his ideas on the use of airpower. Mitchell returned to
Washington after the war to be appointed assistant chief of the Air Corps in
1919. He became a strong proponent of an independent U.S. air force and
of unified control of air power, both of which were opposed by the Navy
and the Army general staff.
figure 40
A. HULL,FRONTROWRIGHT,SERVED
JOHN AS DEPARTMENT
JUDGE
PHILIPPINE
ADVOCATE, BEFOREBECOMING
DEPARTMENT, TJAG
Mitchell arranged and executed a demonstration of the effectiveness of
air power by sinking three captured battleships off Norfolk, Virginia, from
the air. However, the demonstration proved unsuccessful in advancing his
cause and as his hopes for recognition and appreciation of the future of air
power failed to materialize, he became increasingly outspoken in his
criticism of the military hierarchy that did not accept his views. At the
expiration of h ~ term
s as assistant chief ot the Air corps In April 1925, he
was sent to San Antonio, Texas, in his permanent grade of colonel, as air
officer of the VIII Corps area. But this departure from the seat of
government did not silence him. He continued to write and speak in behalf
of his views. T h e climax came in September 1925, when two highly
publicized air disasters (the crash o f the Navy dirigible Shenaildoah and the
loss of three craft on a Los Angeles to Hawaii flight) threatened to shake
Mitchell's credibility. He went before the public, and at a press conference
he handed out the following release:
I have been asked from all parts of the country to give my
opinion about the reasons for the frightful aeronautical accidents
and loss of life, equipment, and treasure that has occurred during
the last few days.
My opinion is as follows: These accidents are the direct result
of the incompetency, criminal negligence, and almost treasonable
figure 41
Yes.
whole paper?
No.
periods were approved and retained locally and are now difficult
or impossible to recover-much to the historian's chagrin.
* * *
MAJORGENERAL EDWARD A. KREGER
Edward A. Kreger, born blay 31, 1868, in Keota, Iowa, received a B.S.
degree from the Iowa State College of Agriculture and Mechanic Arts in
1890. He read law and was admitted to the state bar of Iowa where he
served as a practicing attorney until the outbreak of the Spanish-American
War. O n May 24, 1898, he entered the service as a captain, 52d Iowa
Volunteer Infantry and served for approximately three years with the
Volunteers, spending most of this time in many engagements against the
insurgents. Having been mustered out of the Volunteer service o n May 6 ,
1901, he was appointed a first lieutenant of the 28th Infantry, Regular
Army, some two months later. He served in that grade for 10 years, was
elevated to the grade of captain of infantry on February 15, 1911, and was
made a major, judge advocate, the same day.
General Kreger was awarded the Distinguished Service Cross for heroism
in battle in the Philippines. An Honor Graduate of the Infantry and Cavalry
School, Fort Leavenworth, Kansas, he served two tours as Instructor in Law
at that institution. Kreger also served as Professor of Law at West Point and
as legal adviser in the Departments of State and Justice of the Government
of Cuba. During the First World War, he had varied duties: as Assistant to
the Provost Marshal General, as Assistant and Acting Judge Advocate
General of the American Expeditionary ~ o r d e sin France, and Acting Judge
Advocate General in Washington. ~ r e ~ e l r advance
's in military rank
reflected his creditable service: he obtained His lieutenant colonelcy in 1917;
and on March 11, 1918, was appointed a brigadier general judge advocate.
He was awarded the Distinguished Service Medal as a result of his service
with the A.E.F. during World War I, and performed valuable services as
legal adviser and arbitrator in the Tacna-Arica dispute between Chile and
Peru in 1926. Kreger compiled a casebook on martial law (1910), and
supervised writing b f the 1920 Manual for Courts-Martial along with an
annotated compilation of military laws in 1921.
On November 16, 1928, he was appointed The Judge Advocate General
with the rank of major general-the position he held until February 28,
1931, when he was retired from active service. He died in San Antonio,
Texas, on May 24, 1955.
* * *
Colonel Blanton Winship of Georgia, who had been judge
advocate of the 1st Army in France during the war succeeded
General Kreger as The Judge Advocate General. General Win-
ship's World War I service was unusual for a judge advocate in
that for a time he commanded a force of infantry and, while
doing so, earned the Distinguished Service Cross for heroism in
action. His career also included such ~ositionsas President
Coolidge's military aide and legal adviser t6 the Governor-General
of the Philippines.
* * *
MAJORGENERAL BLANTON WINSHIP
Blanton Winship was born at Macon, Georgia, November 23, 1869, and
obtained his A.B. degree from hometown Mercer University in 1889. He
received a bachelor of laws degree from the University of Georgia in 1893.
He was admitted to the bar and practiced law in Georgia, but upon the
outbreak of the Spanish-American War, entered the Volunteer forces as a
captain of the 1st Georgia Infantry. After some three years of service in the
Volunteer infantry-mostly in the Philippines-he was mustered out.
Winship accepted an appointment as first lieutenant of infantry in the
Regular Army. Soon, he was made an acting judge advocate, with the rank
of captain, and on January 4, 1904, he was appointed a major in the Judge
Advocate General's Department.
While a Volunteer in the Spanish-American War, he served as a
regimental and staff officer a n d as a member of a board of officers on
claims in Manila. After his appointment in the Regular Army, he served as a
judge advocate with the Army of Cuban Pacification, where he was for a
time on duty in the Departments of State and Justice of the Provisional
Government of Cuba, and as a member of the Advisory Commission for
Revision of the Laws of Cuba. He was judge advocate of the Maneuver
Division, Sari Antonio, Texas, in 191 I ; judge advocate of the 2d Division,
Texas City, Texas, in 1914; and was in charge of civil affairs with the Vera
Cruz, Mexico, Expedition, in 1914. Afterwards, he became Instructor in
Law at the Army Service School, Fort Leavenworth, Kansas and was on duty
with the Office of the J u d g e Advocate General until December 26, 1917,
when he sailed for France.
Winship was first the J A of the 1st Division and later performed duties as
Acting Inspector, and with the G 3 of the 1st Army, American Expedition-
ary Forces. On July 19, 1918, he was given the temporary rank of colonel,
judge advocate, National Army, and, although serving as judge advocate of
the I st Army, was placed in command of the 1 10th and 118th Infant~y
Regiments of the 28th Division with whom he participated actively in the
Champagne-Marne, Aisne-Marne, Oise-Aisne, and Saint-Mihiel operations.
figure 43
TJAG BLANTONWINSHIP:HOLDER OF THE DISTINGUISHED
SERVICE
CROSSAND SILVER
STARFOR GALLANTRYIN ACTIONDURINGWORLD
WARI
He was awarded the Distinguished Service Cross, for "extraordinary
heroism in action near Lachaussee, France, November 9, 1918." General
Winship became judge advocate of the Services of Supply and Director of
Rents, Requisitions and Claims Service, at Tours, France, and from
septembef 1919, to November 1923, he was on duty with the Reparations
commissi~nin Paris. For his exceptionally meritorious and distinguished
services in France, Winship also received the Distinguished Service Medal.
He was awarded the Silver Star for an act of gallantry near Villers sur Fere,
France; and his foreign decorations included those of the French Legion of
Honor (Officer), and the Montenegrin Silver Medal for valor.
General Winship returned to the United States in 1923 and was placed in
charge of Civilian Military Training Corps affairs at Headquarters 1st Corps
Area, Boston, Massachusetts. Afterwards, he became Executive Officer in
the Office of The Judge Advocate General; Military Aide to President
Coolidge; Legal Adviser to the Governor General of the Philippines; and
Assistant to The Judge Advocate General. While serving as ~ssistantto The
Judge Advocate General, he was sent as the War Department representative
to accompany a delegation to Venezuela to attend the unveiling of a statute
to Henry Clay erected in that country; and while The Judge Advocate
General, he was sent to Liberia several times as the representative of the
President in negotiations with that country.
Winship became The Judge Advocate General on March 1, 1931, which
position he held until his retirement from the service on November 30,
1933. General Winship continued his career of public service as Governor of
Puerto Rico from 1934 to 1939. When World War I1 broke out, he was
recalled to active duty as coordinator of the Inter-America Defense Board,
and served as a member of the military commission that tried the eight
German saboteurs prosecuted by his successor as TJAG, Myron C. cram&.
When General Winship retired again from the service in 1944 he was the
oldest American officer on active duty. He spent the later years of his life
devoted to the conservation of southern forest lands, and he died a bachelor
in Washington, D.C., October 9, 1947.
The twenties and thirties were a slow period for the Army of
the United States, except for cooperation with national recovery
programs and such training as a very limited budget permitted,
which are described elsewhere in this history. Although the
Army's strength did not exceed 150,000 from 1922 to 1935, there
was work for its lawyers, an increasing portion of which was in
fields other than criminal justice.
The Depression made the Army an economic opportunity for
many men and those who successfully survived the long lines at
the Recruiting Stations were better behaved than some of their
predecessors. Whereas general courts-martial rates per thousand
troops varied between 30 and 40 in the first decade after World
War I, the rates after 1930 dropped to 10 per thousand. Though
not as dramatic, the drops in special and summary courts-martial
were similar, at least to half their former levels. There is a
generally-held belief that the Army's desertion rate is inversely
proportional to the national unemployment rate, ie.. when it is
"cold on the outside" the soldier tries his best to stay in the Army.
These figures would tend to confirm that view. However, the
rates continued their general decline through the Second World
War and into the modern era, marking the progress of the
introduction of modern legal standards presaged by the dispute
over revision of the 1916 Articles of War.
A brief look at the Opinions of The Judge Advocate General
and the Board of Review during this time show disapproval of
courts-martial results in language quite like that which we expect
to see today. Cases from the field were "busted," as the word is
used in office parlance, for variation between allegations and the
proof at trial, for misconduct at trial by the prosecutor, for
permitting the officer who filed the charges to sit on the court,
for "entrapment" of the accused, and because of the admission of
illegally-obtained evidence. These are but samples of the opinions
recorded; there are many more which, taken together, show the
growing emphasis on "procedural due process" in the military
legal system and the enlarged community role of The Judge
Advocate General.
That larger role was not confined to the criminal justice
function. Even though the Army had less money to spend there
were still questions about the validity of contracts bearing a date
which turned out to be a Sunday; the Army's right to full
performance of all contract terms; and the extent of its obligations
under certain contract terms, to mention a few. There were
recurring problems about "lands and buildings," and TJAG was
called upon frequently to determine what law applied and to
whom in "territories and insular possessions" of the United States.
Not surprisingly, money problems abounded, and staff disputes
about the allocation of scarce resources were often resolved by a
decision of TJAG that money from appropriation by Congress
was not available for the use some agency intended. One decision
settled an argument between the Civil Service Commission and
the Chief of the Quartermaster Corps over who would pay for
telegrams sent by the persons selected for employment with the
latter.
Two other observations may be offered from this short review
of TJAG's office opinions during the Depression era. The volume
of business is to some measurable extent related to the size and
current mission of the Army-opinions from the period 1912 to
1924 far outnumber those from 1925 to 1940. Secondly, and less
obviously, the proportion of opinions turning on Army Regula-
tions grew. Earlier collections were dominated by opinions which
interpreted the Articles of War and other statutes, but the Army's
lawyers seem from this period forward to be getting more and
more involved in the internal operations of the military commu-
nity as evidenced by the number of requests for interpretation
and construction of regulations dealing with the full gamut of
Army activities.
Colonel Arthur W. Brown of Utah, who had been acting judge
advocate of the United States Expeditionary Forces at Vera Gruz
figure 44
Kentucky in 1914, and three years later was appointed a major in the Judge
Selective Service law, for which he received the Distinguished Service Medal.
duties in France and became judge advocate of the 111 Corps o n its march
into Germany. After being recalled to the United States, Gullion performed
special duties with the War Department General Staff. Thereafter he served
as department and corps area judge advocate a t Governors Island, New
York; attended various-service sch6ols; and taught at the Command and
General Staff School.
From the Spring of 1932 until December 1933, General Gullion headed
JAG operations in the Hawaiian Department and took over as Administrator
of the National Recovery Act in Hawaii until July of 1935. He then returned
to Washington and was designated Chief of the Military Affairs Division of
T h e Judge Advocate General's Office; later Assistant Judge Advocate
General; and, in 1937, The Judge Advocate General of the Army. During
his term as TJAG, General Gullion represented the United States at a
conference of juridicial experts at Luxembourg. His administration was
marked by many notable achievements including the passage of major
legislation transforming the peacetime Army into a wartime body, and the
reduction of the general court-martial rate to its lowest point in the
peacetime history of the Army. General Gullion established several military
schools, including a school on military government at the University of
Virginia for training officers for possible military occupation duties. Later,
on his recommendation, the Civil Affairs Division of the Army General Staff
was created to utilize the personnel he trained at Virginia. On July 3, 1941,
he was appointed Provost Marshal General in addition to his duties as The
Judge Advocate General (many young JAG officers who recently attended
officer basic training at Fort Gordon, Georgia, may recall Gullion Hall,
named in his honor). Upon completion of his tour as The Judge Advocate
General on December 1, 1941, he continued as Provost Marshal General.
Under General Gullion's guidance the " M P of World War I1 emerged as a
trained specialist equipped to handle the difficult task of military law
enforcement.
One of the more important duties of General Gullion as Provost Marshal
General was supervision of the handling of Axis prisoners of war. It was his
task to see that the rules of the Geneva Convention were followed and that
the prisoners received the treatment which they merited under those rules
'
without coddling or undue favor. By an interesting coincidence, in 1929
General Gullion had been the senior War Department representative at the
International Conference at Geneva, Switzerland, which met to formulate a
code for prisoners of war and revise the Geneva Convention of 1906. Thus
General Gullion, who was perhaps more responsible than any other
American military officer for the creation of a code governing prisoners of
war, was chosen to carry into effect the provisions of that code. And it was
the American Prisoner of War 1nformaGon Bureau, a part of the Provost
Marshal General's Office created pursuant to that international code, which
first reported to General Gullion the capture by the Germans of his
youngest son, First Lieutenant Allen W. Gullion, Jr., an Air Corps officer.
I n 1944 General Gullion accepted an appointment as Chief of the
Displaced Persons Branch on General Eisenhower's staff. In this role he was
charged with consultation and coordination with the governments in exile
with respect to the rehabilitation of their nationals found in Germany upon
its occupation by the Allies. General Gullion was able to complete the basic
planning for this project prior to his retirement in December of 1944. He
died some 18 months later., on .,Tune 19. 1946.
* k *
Fratcher reports that by 1938 there were 90 judge advocates in
active service, 36 of whom were assigned in the Office of The
Judge Advocate General while 27 were assigned to the headquar-
ters of corps areas and posts. Other judge advocate officers served
in various War Department offices and with tactical commands.
After passage of the Act of April 3, 1939, an increase in the
strength of the department to 121 was authorized in annual
increments over a period of 10 years. The outbreak of war in
Europe and the possibility of the United States becoming involved
stimulated additional, but gradual expansion. On July 1, 1940,
there were 105 judge advocates in active service-19 serving in
the Office of The Judge Advocate General. Retired, Reserve, and
National Guard judge advocates were ordered to active duty in
1940 and 1941. By July 1, 1941, there were 190 judge advocates
in active service, with some 100 serving in the Washington office.
VIII
figure 46
MAJORGENERALALLENGULLION,LEFT,SWOREIN MAJORGENERAL
MYRONCRAMER AS HIS TJAG SUCCESSOR.
WITHOUTLOWERING
HANDSTHE NEWTJAG SWOREIN GULLIONAS THE NEWPROVOST
MARSHALGENERAL
MAJORGENERAL MYRON C. CRAMER-WARTIME TJAG
General Myron C. Cramer served as Judge Advocate General during
World War I1 when the Judge Advocate General's Department underwent
an unprecedented expansion to meet wartime needs and was reorganized
along its present h e s .
Mvron Cramer was born in Portland, Connecticut, on November 6, 1881.
He Httended Wesleyan University where he obtained an A.B. degree in
1904, then entered Harvard Law School, receiving the LL.B. in 1907.
Cramer entered the practice of law in New York City, spending three years
on the legal staff of a large insurance company. In 1910 he moved to
Tacoma, Washington, where, for a time, he engaged in the general practice
of law and then served as Deputy Prosecuting Attorney for Pierce County.
During this time he joined the Washington National Guard as a private, and
was commissioned a second lieutenant of cavalry in November of 1911.
In 1916, while still serving as the deputy county prosecutor, Cramer was
called into active service fo; Mexican border duty. This service concluded,
he returned to the prosecuting attorney's office for a brief period before the
Guard was again federalized for World War I. First stationed at Camp
Greene, North Carolina, Cramer went overseas in January 1918 as a captain
with the 41st ~ivision.While in. France he attended the General Staff
College at Langres. Upon his graduation in June of 1918 he rejoined the
41st Division as Assistant Chief of Staff. Awarded the Ordre de l'Etoile Noir of
France for his World War service, Cramer returned to the United States in
July 1919 with the rank of lieutenant colonel.
Myron Cramer resumed his civilian practice in Tacoma for about a year,
but in July of 1920 accepted a commission as a major in the Judge Advocate
General's Department. As a member of the Regular Army he first served as
judge advocate of the 3d Division and later the 4th Division at Fort Lewis,
Washington. Other assignments took him to West Point as assistant
professor of military law-at the United States Military Academy, and to
Manila as judge advocate of the Philippine Department. Returning from
Manila, General Cramer became chief of the Contracts Division, JAGO,
which office he held until he became The Judge Advocate General on
December 1, 1941.
Called to the Army's top legal post only days before Pearl Harbor,
General Cramer presided over the immense expansion of the Judge
Advocate General's Department necessitated by World War 11. The propor-
tions of this expansion are reflected by corps strengths: there were 190
judge advocates in the Army in 1941. By 1945 there were 2,162. The
workload increased tremendously on all fronts, and new areas of endeavor
were undertaken. In the field of military justice, alone, more than 82,000
general court-martial records were reviewed.
During the war years, General Cramer briefly returned to the practice of
his predecessors by serving as co-prosecutor of the German saboteurs who
landed in Florida and Long Island by submarine in 1942. The Army joined
with the Department of Justice with General Cramer prosecuting for the
Army and Francis Biddle for the Justice Department.
After World War I1 General Cramer retired to private practice in
Washington, D.C., but was recalled to active duty in 1946 to act as the
United States member of the 11-nation military tribunal for disposition of
Japanese war crimes. Upon conclusion of the war crimes trials he returned
to his practice. General Cramer died on March 25, 1966, in Washington,
D.C.
At the outbreak of World War 11, judge advocates in the field
were assigned to the staffs of commanders exercising general
court-martial jurisdiction and to larger commands. These mem-
bers of the Department were known as Staff Judge Advocates, the
official designation corresponding to the designation of the
command; for example, Division or Corps Staff Judge Advocate.
With respect to the command to which they were assigned, their
duties corresponded in nature and scope to those discharged by
The Judge Advocate General in relation to the whole military
establishment. In time of war or domestic disturbance their
functions might include duties in connection with military com-
missions, provost courts or other military tribunals, and the
furnishing of advice concerning legal questions relating to claims
and relations of the civil population arising in occupied enemy
territory or incident to hostilities or domestic disturbances. These
judge advocates were in every sense of the word staff officers,
often engaged in additional duties as participation in training tests
of units prior to entry into battle; liaison officers between
headquarters during combat; acting members of the general staff
with troops; and acting inspectors general. The judge advocate
was a soldier as well as a lawyer, as evidenced by the wartime
activities of many JA officers.
ARMYJA's IN WORLDWARI1
* * *
The Spitzer Incident
On the morning of July 31, 1944, a young lawyer who was attached to the
4th Armored Division found himself in the midst of the war in France. First
Lieutenant Samuel E. Spitzer laid aside his personal weapons and walked
openly down the center of a small French town occupied by German forces,
calling out loudly in German that the town was surrounded by American
forces and demanding that the Germans surrender. As a result of this act,
the young attorney captured 508 prisoners of war and saved American lives
that might have been lost in a fight for the town. For his heroism Spitzer
was awarded the Silver Star.
Colonel Rawitser's Capture
At the outbreak of the Second World War, the Judge Advocate General's
Department had 'eight men performing the Army's legal tasks in the
Philippines. As the Japanese attacks portended the ultimate fall of the
Philippines, the Army lawyers set aside their books and took up arms and
fought alongside the rest of the Bataan defenders. Six lost their lives in the
final battle; the survivors were the two oldest men. One was Colonel Emil C.
Rawitser from Tennessee who came into the Army with the 1st Infantry
Tennessee National Guard. Having won a Silver Star in the First World
War, Colonel Rawitser was perhaps not too unfamiliar with the rigors of
combat. Upon capture by the Japanese, the two JA's were sent as prisoners
to Japan. There, because of their poor physical condition, the two Army
lawyers spent their days in captivity as goat tenders. As General Thomas H.
Green once observed "they survived by cheating on the goats."
figure 47
GOFF,I CC CHAIRMAN
ABEMCGREGOR AND CONGRESSMAN,
DECORATED BY TJAG GREEN
P
Assistants
,
Military Military Board o f Special Claims 8: Military
War Contracts Litigation Remvation Patents
P h Affairs Justice Review Executive Assignments
figure 49
abandoned the treasures; and (3) that the appropriation of the jewels was
part of the spoils of war. T o these arguments the Army prosecutor replied:
I t is o u r obligation to see that private roperty in enemy
territory which we occupy be respected and tEat any interference
with such private property for personal gain be justly punished.
Captain Durant was found guilty, dishonorably discharged and sentenced to
five years' imprisonment.
Major Watson's defense that looting was commonplace in Germany was
equally unavailing. He reasoned that the loot either belonged to ardent
Nazis who were dead o r to S.S. members and, as such, "the properties
would never be returned to them." Captain Abraham Hyman, in summariz-
ing for the prosecution, was not persuaded:
T h e court cannot blind itself to the fact there were people who
took advantage o f abnormal conditions in occupied Germany.
However, there is also the precedent of millions of soldiers who
went throu h the war without ielding to the temptation to take
things rvhicg did not belong to t8em.
T h e court of 10 colonels accepted the defense counsel's argument that
Watson had no intention to steal and found him not guilty of theft. After 90
minutes o f deliberation, however, they convicted him of conspiracy and
receiving stolen property. Watson was sentenced to three years' imprison-
ment and dismissal from the service.
Colonel Durant fared no better in his trial at Frankfurt. Durant was
sentenced to 15 years' imprisonment at hard labor and dismissal from the
Army. In any case, much of the Hesse treasure was never found and the
question remains unanswered to this day what happened to that remainder
of the loot, now valued in excess of a million dollars.
* * *
The Litigation Division represented the Army before govern-
mental regulatory commissions, and normally provided most of
the behind-the-scenes legal work needed by the Department of
Justice in its in-court representation of War Department interests.
In proceedings before the Federal Communications Commission,
judge advocates, in cooperation with counsel representing other
federal agencies, successfully resisted an effort to discontinue a
special government rate on wire messages, and succeeded in
having the rate made applicable to messages of the Army
Exchange Service and the Army Motion Picture Service. In a
proceeding before the United States Maritime Commission, judge
advocates represented the War Department in obtaining the
elimination of proposed increases in port charges at all Pacific
Coast ports.
After 1942, members of the Litigation Division acted as counsel
for the War Department in more than 750 formal proceedings
before federal and state regulatory agencies having jurisdiction
over common carriers, and their efforts saved the government
millions of dollars. Briefs were prepared and oral arguments
presented in several cases in federal courts dealing with the
exclusion of persons of Japanese ancestry from coastal areas and
with military jurisdiction over civilians serving in the Army.
Considerable attention was also given to cases concerning person-
nel eligible for employment on hospital ships, the establishment of
suitable criminal jurisdiction over American personnel working at
oil refineries in the Middle East, and the disposal of recaptured
Allied merchant vessels.
The Tax Division was established primarily because of two
Supreme Court cases which gravely affected the government's
contracts then in effect. Those decisions held that cost-plus-fured-
fee contractors, under the particular contracts involved, were not
agents of the United States and had no constitutional immunity
from taxation. With the vast wartime expansion of military
procurement activities, the tax problems caused by these cases
became more important and acute. It became necessary to decide
what was to be done about all the state taxes which had accrued-
and those which might accrue-against cost-plus contractors.
Consequently, in late 1941 The Judge Advocate General was
directed by the Undersecretary of War to prepare instructions for
the guidance of contracting officers in connection with state taxes.
In order to handle these new assignments, on July 29, 1942, the
Tax Division was established with cognizance over all tax matters,
federal and state.
Because of the new state tax burden, two courses of action were
open to the War Department: one was to seek immunizing
legislation; the other was to negotiate with the states for the most
favorable treatment possible under their respective statutes and
regulations. The War Department sought to do both.
Negotiations were carried on with the various states, looking
toward statutory or administrative exemption of cost-plus contrac-
tors from sales, use, and gross receipts taxes. When it became
evident that Congress was not going to enact immunizing
legislation, this activity was intensified. A number of states and a
few cities imposed such taxes. As a result of negotiations lasting
until December 3 1, 1945, 12 states agreed to waive sales and use
taxes accruing prior to the effective date of the tax decisions:
November 18, 1941. Ten states and two cities agreed that their
sales and use taxes would not apply to purchases by cost-plus
construction contractors, and 16 states and two cities agreed that
their sales and use taxes would not apply to purchases by cost-plus
manufacturing contractors.
THEMONTGOMERY WARDCASE
The increasing demands placed on wartime industry for production and
the continual drain on the labor working force due to the draft enlistments
presented new and difficult problems in labor-management relations. The
National War Labor Board was created by Executive Order in January 1942
and was empowered by Act of Congress in 1943 to resolve labor disputes.
~ h r o u ~ h o the
u t early part of t h e war a bitter controversy was waged
between the Montgomery Ward Company and labor unions representing its
employees. Because Montgomery Ward operated a vast merchandising
organization with annual gross sales in excess of $60 million, the War Labor
Board found that its plant and facilities were equipped for the production
of articles that might be required for the war effort. When the Board issued
orders against the Company in its labor dispute with the Unions, Montgo-
mery Ward refused to comply. The President then exercised his power
under the War Labor Disputes Act to seize Montgomery Ward because the
labor dispute threatened to interfere with the successful conduct of the war.
The Attorney General filed legal proceedings in the federal district court in
Chicago for a declaratory judgment of the parties' rights. The President's
authority to seize key industries during wartime was clearly on the line.
The district court agreed with Montgomery Ward's position that the
President as Commander-in-Chief had power strictly military in character
and therefore no power to seize a commercial business. Ward further
argued that its properties were utilized for "distribution" of general
merchandise and were not properties for "production" of war materials
within the meaning of the War Labor Disputes Act. On appeal to the
Seventh Circuit, the district court's decision was reversed by a two-to-one
margin. The Seventh Circuit vindicated the government's position with
respect to the President's seizure power but even then the issue was not
finally resolved. On November 5, 1945, on writ of certiorari, the Supreme
Court dismissed the government's complaint as moot since the War
Department had vacated the company's plants. Thus, a lengthy legal
proceeding went for naught and the issue of the President's authority went
unresolved until another day.
* * *
Real Estate for National Defense
The Military Reservations Division was concerned with legal
matters pertaining to the lands and buildings under the control of
the Secretary of War, as well as rivers, harbors and flood control
regions.
At the outset of the period from July 1, 1940 to December 31,
1945, the Military Reservations Division performed a threefold
function. Initially, the Division engaged primarily in giving legal
advice in the form of written opinions to the Secretary of War
and the various branches of the War Department with respect to
matters such as those mentioned above. Secondly, as a corollary to
this duty, it was the repository and custodian of the title records to
those lands under Secretarial control. And, finally, from those
records, the Division compiled and published a revision of the
1916 edition of the War Department publication United States
Military Reseruations, National Cemeikries, and Military Parks, in the
form of separate pamphlets entitled Military Reservations, each
covering the title, jursidiction and descriptive data for all the
military reservations in one state or territory.
The national defense program instituted in 1940 and the war
program which followed the declarations of war in December
1941 resulted in a tremendous land acquisition program. The
number of military reservations increased from about 512 to over
1,800; the acreage involved increased from two and a half
million to approximately 33 million. The volume of The Judge
Advocate General's work in the field of real property law reflected
a concommitant increase.
International Law
A War Plans Section was established in the Judge Advocate
General's Office on September 26,1939, and subsequently became
the International Law Division. Its cases involved war plans,
international law, military government, martial law, prisoners of
war, internment of enemy aliens, and related subjects.
In 1940 the Division advised concerning the disposition of a
smaller number of cases involving the relation of this country to
the warring powers abroad. As evidence that there is "nothing
new under the sun," many cases concerned the disposition of
deserters from the belligerent armies who had made their way to
this country.
Also during this period the Division rendered opinions relating
to proposed legislation on the disposition of funds that might be
acquired by the United States in exercising military government,
and relating to the subjection of American war plants to martial
law. It also was called upon for advice as to the military control of
alien fifth columnists. In 1941 a large part of the work was still
primarily of a planning character but it came to relate to plans for
martial law in Hawaii, the Panama Canal Zone, and Alaska rather
than to military government in foreign territory. The Division
assisted in the drafting of documents and outlining of plam for
martial law in those possessions.
* * *
THEEXECUTIVE
AND JUDICIAL BRANCHES
AT LOGGWIEADS LAWIN HAWAII
:MARTIAL
The Japanese attack at Pearl Harbor and the declarations of war which
followed created a state of emergency in the Territory of Hawaii. The
government of Hawaii which was created in the wake of the Pearl Harbor
disaster has presented a controversy not settled to this day.
On December 7, 1941, martial law in Hawaii was declared under the
direction of Lieutenant General Delos C. Emmons. Thomas H. Green, later
Judge Advocate General, assisted in drafting the martial law documents and,
in fact, served as the executive to General Emmons in charge of the martial
law operation.
During the first 16 months of martial law in Hawaii, the Military
Governor issued 181 general orders and numerous special orders. Martial
law regulated the use of materiel and supplies, provided for food
production, changed the legal tender of the Islands, provided for the
apprehension and internment of enemy aliens deemed dangerous to
internal security and, in brief, took over many of the functions and
responsibilities of the government. At the inception of the martial law
complete control over civil courts was exercised but restrictions were
gradually modified, especially as to noncriminal proceedings.
At the time Governor Poindexter of Hawaii signed the proclamation of
martial law it appeared that the institution of such regulation was essential
because the civil authorities were unable to cope with the military
emergency. By 1943 Hawaii had shifted gears from defensive to offensive
preparations. Thus, the continued use of the military tribunals for trial of
civilians and the prohibition against writs of habeas corpus after 1943 were
criticized. Matters finally came to a head when two German-American
internees applied for writs of habeas corpus.
figure 52
figure 54
THEANNARBOR
JAG SCHOOL
CREST
figure 55
REVIEWING
JAG SCHOOLPARADEARE, LEFT TO RIGHT,JUDGE
ADVOCATEG ENERALCRAMER,FUTURETJAG GREEN,COLONEL
"HAM"YOUNG,TJAGSA COMMANDANT, AND COLONEL EDGAR
HARVEYSNODGRASSWHO BECAMETHE FIRSTAIR JUDGEADVO-
CATE
Many school stories centered around the school's trusty cannon, an old
French 75 mm. piece of World War I, fondly referred to as "Old Hateful."
TO ~ r o t e c t"Old Hateful's" shining muzzle, a canvas cover was strapped on.
cannoneer, being a few seconds behing time, and rushing to make it up
at reveille absentmindedly jerked the lanyard without first undressing the
piece. Demerits ensued. For firing the gun too soon one graduate earned
the nickname "Early Boom O'Brien." Another who failed even to discharge
the piece was dubbed "No Boom Akanow." One student on his initial tour
of duty on the bugle detail, apparently lacking an ear for music, played the
reveille record on the robot bugler when it was time for taps; another
played taps at time for reveille; while a third "skinee" on a dark icy morning
committed the unpardonable sin of sounding reveille exactly one hour too
early. Needless to say, this early riser found little sympathy from his
classmates over his "handful'' of demerits.
* * *
General Cramer's term as The Judge Advocate General expired
on December 1, 1945, after four years of total-war experience. He
was succeded by Brigadier General Thomas H. Green of
Massachusetts, w h b hadYservedduring the war as executive to the
Military Governor of Hawaii and as Assistant and Deputy Judge
Advocate General in Washington.
* * *
THOUSH. GREEN
General Green was born in Cambridge, Massachusetts, on April 22, 1889,
and graduated from Boston University in 1915 with a Bachelor of Laws
degree. He was admitted to the bar of Massachusetts and practiced law in
Boston until called into federal service with the Massachusetts National
Guard in 1916 for border patrol service. In late 1917 he was commissioned
a second lieutenant in the Regular Army and assigned to duty with the 2d
Cavalry at Fort Ethan Allen, Vermont. He later transferred to the 15th
Cavalry at Douglas, Arizona, and went to France with that regiment in
March of 1918. He served in various places throughout France and
participated in the Meuse-Argonne Offensive. He attained the temporary
rank of major while overseas and served as commanding officer of his
regiment in bringing it back to this country. Thereafter he held numerous
assignments and manifested a renewed interest in the law by pursuing
studies at George Washington University, culminating in his receipt of the
degree of Master of Laws in 1923. On December 22, 1924, he transferred
from the cavalry to the Judge Advocate General's Department.
In his tours of duty thereafter he served in the Civil Affairs Section of the
Judge Advocate General's Office in Washington, and as Assistant Judge
Advocate of the 2d Corps Area at Governor's Island, New York. These
duties were followed by a further tour in the Washington office where he
was assigned to the Military Affairs Section, and later as Chief of the Patents
Section until June 1939. During this period he was also detailed to take a
special field officer course at the Chemical Warfare School, Edgewood
Arsenal, and received further specialized military instruction at the Army
Industrial College, from which he graduated in June of 1938.
In August 1940 he was assigned for duty as Judge Advocate of the
Hawaiian Department where he was m a d e Executive to the Military
Governor in December of 1941. For his work in the latter assignment he
received the Distinguished Service Medal, and was largely responsible for
the military government of the Islands during the critical year and a half
immediately following the Japanese attack o n Pearl Harbor. Under his
administration the health, morale and financial condition of the territory
were greatly improved, and procedures of military government worked out
and placed in operation at that time have since become the model for
modern legal thinking o n this subject. I n recognition of the part General
Green played during this period, the Hawaiian legislature passed a special
resolution commending him for his outstanding work. It is known that he
received hundreds of letters from people of all walks of life in Hawaii
praising his administration. And it was while occupying the position of
figure 56
H. GREEN,
THOMAS GENERAL
JUDGE ADVOCATE
Executive to the Military Governor that he was promoted to brigadier
general on May 24, 1942.
He returned to the United States in April 1943 and was reassigned to the
Office of The Judge Advocate General, as the Assistant JAG in charge of
Military Justice and later in charge of Civil Matters.
Thomas Green's love for the service and its tradition was evidenced when
Assistant Judge Advocate General Green came to Washington. The Winter
1945 issue of T h Judge Advocate Journal, in its "Meet General Green" article
reported:
On coming to Washington as Assistant Judge Advocate General
in 1943 he immediately decreed that since eve Army Officer
worth his salt should be a good marksman, all x o s e on duty in
JAG0 should report to Fort Myer for pistol practice. He was
privately !leased at the high percentage of experts and s h a r p
shooters t at were revealed. Carrying it a bit further, all officers
were next re uired to fire the carbine at a range set up in Rock
Creek Park. %he final scores on this firing were also unusually
satisfactory and about this time there was s eculation in the
corridors of the Munitions Building that the " 0 6 Man" was about
to send the office force out for an hour of close order drill each
morning up and down Constitution Avenue.
In September 1944, General Green was made Deputy Judge Advocate
General. He was awarded an Oak Leaf Cluster to the Distinguished Service
Medal for his work in the Washington office, principally in recognition for
the important part he played in determining the legal policies to be followed
in the unprecedented field of Army operation of industrial plants arising
from labor disputes.
Thoms H. Green, who started his military career as a private in the
cavalry, attained the rank of major general by virtue of his appointment as
Judge Advocate General on December 1, 1945. He served four successful
years in that position, retiring on the 30th of November, 1949.
The podium beckoned to General Green, as to so many of his colleagues.
His retirement years, until his death in 1969,were occupied as Professor of
Law and Professor Emeritus at the University of Arizona. Mrs. Green
graciously made available to the TJAGSA Library his papers and the
Memoir which occupied the General's second retirement.
* * *
Management of the world's largest law firm and of the legal
needs of the Army is always a major task for The Judge Advocate
General. General Green foresaw the increased need for judge
advocates after the cessation of hostilities and his estimates were
fully justified by the large requisitions for judge advocates
submitted immediately from both overseas commands and the
Zone of Interior. It was obvious that the decline in legal business
would not be as rapid as had been the decline in troop strength.
Additional attorneys were needed for the prosecution of war
criminals; the administrative settlement of several kinds of claims;
and the review of all records of trial by Army courts-martial to
consider prisoners for clemency. The number of courts-martial
cases tried during World War I1 (1,700,000) amounted to one
third of all criminal cases tried in the nation during the same
period. The bulk of these were minor and the sentences or other
punishments forgotten or expiated by later, honorable service.
Some were, however, serious. A clemency board, appointed by the
Secretary of War in the summer of 1945 to review all general
court-martial cases where the accused was still in confinement,
remitted or reduced the sentence in 85 percent of the 27,000
serious cases reviewed.
Although there were over one and a half million courts-martial
during World War 11, the death penalty was rarely imposed.
Those cases typically were murders and rapes; only one-Private
Eddie Slovik-had been convicted of a "purely military offense."
THEEXECUTION
OF PRIVATE
SLOVIK
* * *
During the Second World War there were 318,274 deaths in the United
States Army, of which 255,618 were battle deaths. Of the larger number,
142 were deaths by execution, all for murder, rape and rape-murder except
one. The one exception was Private Eddie D. Slovik, who was "shot to death
by musketry" on January 31, 1945, for the crime of desertion in the face of
the enemy.
Slovik was born in Detroit in 1920 to a family of Polish ancestry. Home
conditions were poor and Eddie Slovik grew up as a "dead e n d kid with a
police record. By late 1943 the Army was beginning to scrape the bottom of
the manpower barrel and Slovik was reclassified I-A. Upon completing his
infantry training at Camp Wolters, Texas and receiving a denial on his
application for a dependency discharge, Slovik sailed for Europe with 7,000
other infantry replacements. On the trip over, while cleaning his rifle, Slovik
said to one Tankey, "I never intend to fire it." Slovik and Tankey were
assigned to Campany G, 109th Infantry, 28th Division. The truck set out for
Elbeuf to join the unit, passing by scenes of wreckage, destruction and death
that had been the Falaise pocket. When they reached Elbeuf, shelling began
and the men were required to dig in. There was an order to move out
which Slovik and Tankey obeyed in one respect-they moved away from the
action and turned themselves in to a Canadian outfit, the 13th Provost
Corps, with which they remained for about 45 days. Slovik did odd jobs for
the Canadians, principally cooking. On October 7, 1944, he and Tankey
finally reached the 109th Infantry Headquarters, and on the next day he
reported to Company G.
He told the CO that he was "too scared, too nervous" to serve with a rifle
company and that unless he could be kept in a rear area he would run
away. The CO assigned Slovik to the 4th Platoon, turned him over to the
platoon leader and forbade him to leave the company area without
permission. The platoon leader introduced Slovik to his squad leader. Later
Slovik came to the CO and inquired if he could be tried for AWOL, the CO
said he would find out, and had him placed in arrest and returned to his
platoon area. About an hour later, Slovik went back to the CO and asked,
"If I leave now will it be desertion?" The CO said yes, and Slovik left,
without his gun, walking fast.
At about 0830 hours the next morning Slovik turned himself in to the
Military Government Detachment, 122th Infantry, told the cook he had
made a confession and handed him a green slip containing the following
broken language:
I Pvt. Eddie D. Slovik No. 36896415 confess to the desertion of
the United States Army. At the time of my desertion we were in
Albuff in France. I came to Albuff as a replacement. They were
shelling the town and we are told to dig In for the night. The
following mornin they were shelling us again. I was so scared
nerves and trem%ling that at the time the other re lacements
moved out I couldn't move. I stayed there in my foxhoi till it was
quiet and I was able to move. I then walked in town. Not seein
any of our troops so I stayed over night at the French hospitaf
The next mornlng I turned myself over the Canadian Provost
Corp. After bein with them six weeks I was turned over to
American M.P. ~ e
i turned ~me loose. I told my commanding
officer my story. I said that if I had to go out there again I'd run
away. He said there was nothing he could do for me, so I ran
awa a ain and I'LL RUN AWAY AGAIN IF I HAVE T O GO
OUT &ERE.
differs with his legal adviser) was to state his reasons in writing
and make them part of the record. He had power to approve
only those findings and the sentence which he found "correct in
law and fact and as he in his discretion determines should be
approved." He also could remit or reduce, but not increase, any
sentence.
Special and summary court-martial results were subject to the
same reviewing authority action and were further reviewed by a
legal officer before becoming final. There was no automatic
appeal of these lower courts, but an accused could request
extraordinary relief from The Judge Advocate General, if the
error in his case was serious.
Completed general court and those special court cases in which
the sentence included a bad conduct discharge were, after local
review, forwarded to The Judge Advocate General who was given
both substantial personal powers of review and mitigation, and
208
The A m y in Peacetime
The Korean War ended in July 1953, and General Brannon
completed his four-year term as Judge Advocate General some six
months later. He was succeeded on February 5, 1954, by Eugene
Mead Caffey.
MAJOR GENERAL EUGENE
*
MEADCAFFEY,
*
JUDGE
*
ADVOCATE GENERAL
Eugene Mead Caffey was born in Decatur, Georgia on December 21,
1895. He entered West Point in 1915 and was graduated in 1918 in the
accelerated courses consequent upon the First World War. On the day of his
figure 59
The United States had been in the military assistance business since as
early as 1869 when William Tecumseh Sherman took 50 men as advisers to
Egypt. In 1886, the United States sent an aid team to Korea, and in 1926
military missions went out to a number of South American countries. World
War I1 saw a major military assistance effort begin, with the 1941 Lend
Lease Act. This was followed by the Mutual Defense Assistance Act in 1949
and the Foreign Assistance Act in 1951. These became the bases for the
dispatch of military assistance groups to many friendly states.
Judge advocates were called to join a number of Military Assistance
Advisory Groups. Activities in Iran presented a representative example of
overseas MAAG duties. A military mission was first sent there in 1941 and a
supplementary MAAG Agreement signed in 1952. The judge advocate sent
to the Iranian MAAG had the primary duty of advising the Iranian Judge
Advocate General and was given the specific Military Occupational Specialty
Code, "Advisor In A Mission."
By informing the Iranian Judge Advocates about American military law
and how we solved our military justice problems, he acted to "export" the
American ideals and experience abroad. 1n turn, Iranian legal officers come
to both Basic and Advanced Classes at The Judge Advocate General's School
in America. But Iran was not an isolated instance: other judge advocates
went out to similar assignments in the Republic of China, Greece, Korea,
Thailand and Turkey. One also served with the joint Brazilian Mission at
Rio de Janeiro.
The assignment to the MAAG, Republic of China, on Taiwan began
differently, but became much like the others. That position also deserves
mention for the way it illustrates how a lawyer's job can grow in interesting
ways. The judge advocate went to the MAAG not under any policy to
"export" our law, but because a significant number of U.S. forces were in
Taiwan and house counsel was needed to serve them. Yet, the advisory
group's mission there was unique and special duties were also required of
the servicing judge advocate. His initial job was to provide support to the
American forces stationed in the MAAG, to advise-local judge advocates,
and to also advise the local U.S. Embassy as necessary. Advice to the local
Taiwan ,judge advocates was given and accepted as a natural development
from contacts between the forces. An important part of the job in Taiwan
was not to give our law to the Chinese but to explain it to them so the
Americans and Chinese could work together. This was a special need which
grew with the negotiations for a status of forces agreement.
Perhaps the most challenging MAAG assignment was given to the judge
advocates assigned to the MAAG in Vietnam. There, the mission grew far
beyond its original size yet typified the basic intent of a MAAG. The first
judge advocate in Vietnam went to the U.S. Army Element of the Military
Assistance Advisory Group Vietnam (MAAGV). In 1962 the Military
Assistance Command, Vietnam (MACV) was established, and MACV gradu-
ally assumed the functions of MAAGV. The staff judge advocate at MACV
had the responsibility of providing field advisers-military lawyers--who
could assist their Vietnamese counterparts in the field and also would at the
same time gather as much information as possible about the local legal
system. Additionally, a great deal of assistance was needed by the Vietnam-
ese who were simultaneously building their own rule of law, creating a
bench and bar, and establishing a civil service where none had existed
before. Problems centered around assisting the Vietnamese to create,
strengthen and reorganize their military and military-related governmental
institutions. The American judge advocates tried to inject into these systems
American ideas and attitudes o n law and justice: were presented,
seminars were held, courses were given at Saigon University, Vietnamese
officers were sent to The Judge Advocate General's School, and a constant
stream of on-the-spot advice was given. Typical projects include American
help in reorganizing the Vietnamese military prison system, and advice on
prisoners of war and war crimes.
* * *
Thus Army JA's spent some wonderful years abroad-and
some uncomfortable ones-assisting their colleagues in friendly
armed forces. Like so many of the activities in the military
community the job of assistance abroad spanned decades. The
brief review in the Vignette carried us almost to the present from
the middle of General Caffey's tour. That tour was also marked
by the decision of the U.S. Supreme Court in Toth v. Quurles
(1955)by which the Court invalidated that part of Article 3 of the
Code which permitted the trial of service members after separa-
tion, in certain serious cases. The Toth case also marked the
beginning of a period of closer scrutiny of military courts by their
civilian counterparts. During the period TJAG also was assigned
new-missions in the field of administrative law. One which touches
the lives of many soldiers is the review of "Reports of Survey," the
administrative procedure by which responsibility for the loss of
government propertv may be fixed. The Army lawyers in the
field and in Washington were obliged from this time forward to
review the reports of the investigation, especially if someone had
been found "pecuniarily liable" by the investigator. The legal
review normally considered the local law of negligence, scrutiniz-
ing the individual responsibility of the person named in the report
and the procedures established by Army Regulations, to ensure
that the burden of the damages was properly placed.
Status of Forces Agreements: A New Dimension in International Law
To supplement the United Nations Collective Security System
after the Second World War, many States turned to bilateral and
multilateral self-defense agreements to provide security from
external armed attack. The United States entered into many of
these agreements, comprising what was commonly termed "the
United States Mutual Defense System." Under developing condi-
tions of modern warfare, collective self-defense preparation
required close peacetime cooperation, including in many instances,
the stationing of military forces in territories of allied States. In
the decade of the 1950's, the stationing of American troops in
foreign countries around the world required the execution of
many status of forces agreements that specified the rights and
duties of the receiving (host) State and the sending (guest) State.
The best known of these agreements is the NATO Status of
Forces Agreement, but others have regulated the status of US
forces in such countries as Japan, Korea, the Philippines, Ethiopia
and Saudi Arabia. Many supplementary implementing agreements
flowed from these status of forces agreements, and many other
successful negotiations such as those providing for bases likewise
resulted from stationing U.S. forces abroad. This large body of
international agreements was essential to the Army's mission in
American collective defense arrangements, and created many new
demands for Army legal services in the fields of international,
comparative and foreign law. Precedents created under these
agreements in the course of adjudication and practice rapidly
grew into a body of "Status of Forces Law."
The matters covered by the status of forces agreements varied
in scope and detail, but commonly regulated such subjects as
criminal and civil jurisdiction, claims, taxes and duties, and the
procurement of employees and local supplies. Under these
agreements, the crucial area of Army judge advocate work
concerned the implementation of provisions regarding criminal
jurisdiction in tens of thousands of cases involving American
military personnel, their dependents and civilian employees of the
military. And in their modernday practice under these agree-
ments, the lawyers of the Corps have seen to the faithful
execution of our country's duties. Concurrently, they have
vigorously maintained the right of U.S. forces to be subject only
to the proper exercise of foreign criminal jurisdiction when in
foreign custody; that they receive the procedural protection that
was guaranteed to them at all stages of foreign criminal
proceedings; and that they be accorded all other benefits provided
under the relevant agreements with the country exercising
criminal jurisdiction.
The entrance of the United States into this complex structure
of international agreements gave rise to new issues under our
Constitution and statutory law. One vital issue was considered by
the U.S. Supreme Court in the case of Wilson v. Girard, 354 US
524 (1957), wherein the Court was confronted with the question
of whether the Army could lawfully choose to waive its right of
jurisdiction over a serviceman and allow him to be tried by the
Japanese courts, as provided for in the status of forces agreement
with Japan. The Court found no constitutional o r statutory
barriers to the treaty provisions in question, stating: "In the
absence of such encroachments, the wisdom of the arrangement is
exclusively for the determination of the Executive and Legislative
Branches."
Major General Caffey retired as The Judge Advocate General
on December 30, 1956, after a distinguished military career that
extended over a period of more than 38 years. He was succeeded
on January 2, 1957, by Major General George W. Hickman, Jr.
figure 63
1951. During this period he was Assistant Executive, member and Chief of
the Special Projects Division, and Assistant to Board of Review Number 1.
While serving as Chief of the Special Projects Division he was responsible
for establishing the postwar legal training progran~for the Judge Advocate
General's Corps Reserve officers; subsequently, he authored the procedural
chapters of the 195 1 Marma1 for Courts-Martial. O n July 10, 195 1, he became
a member o f the Staff and Faculty of the reactivated Judge Advocate
General's School at Charlottesville, Virginia.
Following his 1954 graduation from the Command and General Staff
College, Fort Leavenworth, Kansas, General Hodson served as Assistant
Staff Judge Advocate and, later, Executive Officer, Headquarters, Army
Forces, Far EastBth United States Army (Rear) from August 1954 to June
1957. During this same period he was also senior United States member of
the joint United States-Japan Committee which supervised the exercise of
criminal jurisdiction over united States personnel by Japanese courts.
Upon completion of this overseas assignment in 1957, General Hodson
attended the Army War College. Following his graduation, he was once
again assigned to the Office of The Judge Advocate General. From July of
1958 until September of 1962 he served as Chief of the Military Personnel
Division, Chief of the Military Justice Division, and Executive Officer. On
September 1, 1962, he was promoted to the grade of brigadier general. A
month later he became Assistant Judge Advocate General for Military
Justice. On July 1, 1967, he was appointed The Judge Advocate General of
the Army and was promoted to the grade of major general.
Upon completion of his tour as The Judge Advocate General, in mid-
1971 General Hodson retired, but was immediately recalled to serve as
Chief Judge of the Court of Military Review until March of 1974. He was
the first general officer to serve in that appellate judicial capacity.
figure 65
TJAG GEORGES. PRUGHCONGRATULATES BRIGADIERGENERAL
EMORYM. SNEEDEN ON HIS 1974 APPOINTMENT
AS CHIEFJUDGE
OF THE ARMYCOURTOF MILITARY REVIEW
A significant new due process right provided by the Act was a
provision for post-conviction release. The Act gave the convening
authority power to defer the serving of a sentence to confinement
until completion of appeal. Also, The Judge Advocate General of
each service became authorized in any court-martial case that had
been finally reviewed to vacate o r modify the findings and
sentence because of newly discovered evidence, fraud on the
court, lack of jurisdiction over the accused or offense, or error
prejudicial to the substantive rights of the accused. The last
ground-rror prejudicial to the substantive rights of the ac-
cused-is important, for this now means that, for the first time, a
person convicted in a special court-martial who did not receive a
bad conduct discharge (this type of case accounts for almost two-
thirds of the total military courts-martial) can obtain a review of
prejudicial errors by someone other than the convening authority
and his staff judge advocate's office. Performance as a member of
a court-martial or defense counsel cannot be considered in the
preparation of an effectiveness, fitness, or efficiency report or in
the report used in determining promotion, retention or assign-
ment.
A revised edition of the Manual fm Courts-Martial came into
being in late 1969, incorporating the changes of the new Justice
Act into a Manual previously issued that year. Except for a few
provisions which took effect upon enactment, the new legislation
became effective on the 1st of August, 1969. One measure of its
impact was the demonstrated requirement for 401 new JA
officers, the addition of which produced a Vietnam era high of
1,782 attorneys on active duty in the Corps.
Changes within the Army had their counterparts in changes in
the civilian society and, as always, there were effects on the
military cbmmunity. This was the period of the Warren Court
and of a new liberalism "outside." During the 20 years or so after
World War I1 there were more military cases in United States
courts than in the previous 18 decades. The cases were challenges
to the government's power to conscript young men, to retain
them in the service, to try them for misconduct, or even to
reassign them from one post to another. We are speaking here of
"status" determinations and actions which federal courts to 1950
had almost uniformly regarded as matters of internal military
administration. This startling increase was the product of the new
liberalism and the number of lives touched by compulsory military
service. The Army won some of these challenges and lost some.
Probably the most dramatic loss was of a segment of its criminal
jurisdiction which occurred in the 1969 case, O'CalZuhun v. Parker.
* * *
O'Gallahan v. Park, LANDMARK CASEFOR JURISDICTION OF MILITARY COURTS
In 1962 when Chief Justice of the Supreme Court Earl Warren delivered
the third James Madison Lecture at the New York University Law Center
entitled "The Bill of Rights and the Military," he discussed the role of the
Court in determining conflicts between the Bill of Rights and m~l~tary
necessity. The Chief Justice stood solidly behind the Supreme Court's
unwavering position that it lacked jurisdiction to review, by certiorari, the
decision of military courts except in extraordinary circumstances. Little did
the Chief Justice know that he would became a part of the majority which
would place a firm grip by the judiciary on an area formerly considered
beyond the reach of civilian courts-the military establishment's broad
power to deal with its own personnel.
On the night of July 20, 1956, Army Sergeant James F. O'Callahan and
his roommate and friend, Charles Redden, left their duty station at Fort
Shafter, Oahu, Territory of Hawaii, with an evening pass. The two, dressed
in civilian clothes, had a few beers in a Honululu hotel bar. Later that night,
they made their way to a balcony on the fourth floor of the residential part
of the hotel. From the balcony, they could see a girl sleeping in an adjacent
bedroom. O'Callahan suggested that they enter the room and one of them
could hold the girl while the other had intercourse with her. Redden
refused to participate and departed. O'Callahan then forced his way into the
room and seized the 14-year-~ldgirl. His sexual attack upon the girl was
unsuccessful; she struggled free from his restraints and screamed for
assistance. Immediately thereafter O'Callahan was observed jumping from
one balcony ledge to another, until he reached ground level. He was
apprehended on the hotel grounds by a hotel security guard, who observed
him wearing a tee shirt, with his belt loose and his trousers open.
O'Callahan's outer shirt was found in the victim's room. Later he was
returned to military authority, and after interrogation, confessed.
He was charged by the military with attempted rape, housebreaking, and
assault with intent to commit rape. A general court-martial tried O'Callahan
and found him guilty as charged. He was sentenced to be dishonorably
discharged from the Army, to forfeit all pay and allowances and to be
confined at hard labor for 10 years. His conviction was affirmed by an
Army board of review. The United States Court of Military Appeals denied
his petition for review.
In April 1966, O'Callahan petitioned the United States District Court for
the Middle District of Pennsylvania for a writ of habeas corpus alleging
generally that the court-martial had no jurisdiction to try him for a
nonmilitary offense committed off-post while he was authorized to be
absent. The District Court refused to consider that issue because O'Callahan
had obtained an unfavorable ruling that same year from the Federal District
Court of Massachusetts where he previously had been confined. The United
States Court of Appeals for the Third Circuit affirmed the decision of the
lower court without discussion of the question. On certiorari, the United
States Supreme Court reversed the lower courts, holding that the crimes of
which allaha ah an was charged were not "service connected" and, therefore,
not triable by court-martial.
Justice Douglas, delivering the opinion of the majority, concluded that
O'Callahan could not be tried by court-martial because his crimes were not
"service connected." Douglas stated that "not even the remotest" military
connection existed in the case. At the time of the offense O'Callahan was
offduty, off-post, in civilian clothing, committing a "civilian" offense of no
military significance, against a civilian victim. In establishing the absence of
any service connection, the majority further noted that these were peacetime
offenses "committed within our territorial limits, not an occupied zone of a
foreign country." That being so, the accused was entitled to civilian
procedures, especially a jury trial. The majority opinion brushed aside the
government's contention that status as a member of the armed forces was all
that was needed for the exercise of military jurisdiction, which had been the
general rule for 190 years.
Justice Harlan vigorously dissented in the O'Callahan case. He contended
that the military's interest in deterring crimes by soldiers should mean
jurisdiction in military-not civilian courts. Arguing that the limitation of
court-martial jurisdiction was solely a matter for the legislative branch,
Harlan maintained that:
[Tlhis court has consistently asserted that military 'status' is a
necessary and sufficient condition for the exercise of court-martial
prisdiction. The court has never previously questioned that the
anguage of Clause 14 would seem to make plain-that, given that
requisite military status, it is for Congress and not the Judiciary to
determine the appropriate subject-matter jurisdiction of courts-
martial.
On the other hand, Justice Douglas and the majority noted that
constitutional civil rights were at stake in O'CaUahan, and that in order to
protect those civil rights, the power of Congress to make rules for the
government and regulation of the land and naval forces must be "exercised
in harmony with express guarantees of the Bill of Rights."
O'Callahan had a significant impact on the Corps. In civilian life such
unexpected decisions require many more cases thereafter to sort out all the
consequences of a major change of direction. For the service attorney,
O'CaIlahan meant some 40 cases in the 'next three years, and others in later
years to define the term "service connected" and the geographical limits of
the rule. At first glance it seemed to some that O'CaUahan would save a lot
of work, but General Hodson's contemporary prediction to the contrary was
the more accurate one. The number of cases involving "purely" civilian
offenses is small and their disappearance was more than offset by work
involved in the follow-on cases and the increased coordination with civil
authorities required when the case was tried "downtown."
* * *
The late sixties and early seventies were a period of unprece-
dented challenge to the Corps. Changes in the criminal justice
system were sufficient to have occupied a decade of attention in
an earlier time, but became almost workaday problems in this
period because there were new developments on almost every
front.
During this period the Corps also joined with law schools and
other organizations in a nationwide effort to recruit and train
high caliber minority lawyers. Aware of the acute shortage of
black attorneys in the military and civilian legal forces, Army
representatives met to do their part in formulating a strong and
positive minority JAGC recruiting program with several black
Army JAG'S (among them: Captain Togo D. West, Jr., now a
Washington,D.C. practitioner; Captain Sanford W. Harvey, Jr., still
on duty, presently as a special court military judge; and Captain
Curtis R. Smothers, now associate professor at Georgetown
University Law Center). Out of these discussions with black JAG
attorneys and the senior leaders emerged the Corp's Minority
Lawyer Recruiting Program. Captain Kenneth D. Gray, a black
judge advocate, was assigned to OTJAG to implement and
coordinate the program designed to recruit all minority lawyers
and women for the Corps. Increased recruiting efforts were
directed toward law schools with substantial minority enrollments;
advertisements were selectively designed and placed, depicting the
role of the minority and female judge advocate as counsel or
judge; a summer internship program designed to hire some 100
first and second-year law students was agressively pursued for
minority participation; the Corps pushed for the voluntary return
to active duty of many of its fme black Reservists; and the Excess
Leave Program-the major source of the Corps' present-day black
strength was actively promoted among minorities. Even at this
August 1971 meeting there was a nucleus of 17 black Army judge
advocates. Many of these attorneys continue in their service to the
Corps: Colonel Joseph Bailey has distinguished himself as an able
jurist as senior judge of the Army Court of Military Review, and
there are a number of other fellow officers serving as senior JA's
and judges at the trial level. Other black JAG "alumni" have gone
on to more promising civilian posts: Talrnadge Bartelle, a career
JA officer for many years, is now associate legal counsel with
General Mills; J. Clay Smith, a D.C. practitioner and outstanding
legal educator, presently holds the position of deputy chief with
the Federal Communication Commission's Cable Television Bu-
reau; Ronald C. Griffin left the TJAGSA podium for a teaching
position with the University of Oregon School of Law; Vernon S.
Gill is serving as a legal adviser with the District of Columbia
police department; and Robert Henry Cooley, who left a
noteworthy career with the Armed Services Board of Contract
Appeals, is presently pursuing the private practice of law in
Washington, D.C. Black participation in Corps activities continues
to grow with the ever-increasing ranks of promising young
attorneys. And although competition for such qualified legal talent
has grown keener in recent years, as of the fall of 1974 there
were 38 black JA's on active duty. Recruiting efforts for the
future look all the more hopeful under the direction of William P.
Greene, Jr., a black senior captain in charge of all Corps
recruiting.
During the late sixties and early seventies Army JAG'S went
with their commanders to Arkansas, Mississippi, Michigan and
other parts of the United States where the Army was sent to keep
the peace. OTJAG was involved in the planning and supervision
of such operations and unit SJA's went to the scene with the units.
They helped deal with civilian authorities, advised their com-
manders concerning the limits of emergency powers, and per-
formed their traditional role with the troops.
The increasing complexity of modern life had its effect on the
soldier, perhaps a larger effect because his life was already
complicated by low pay relative to his contemporaries and
frequent moves to new surroundings at home and abroad. These
conditions often make the soldier's legal problems larger than his
income level would suggest as appropriate. Such problems, if
unresolved, become preoccupations and reduce efficiency. Conse-
quently, the Corps has maintained an active "legal assistance"
program which permitted the individual soldier to consult with an
attorney and receive advice about personal legal matters. Under
this program soldiers could also have wills or powers of attorney
written for them and receive help with correspondence to
creditors or civil courts. From World War I1 forward, the
program was limited to office advice--the legal assistance officer
was limited in his authority to negotiate on behalf of a client and
could not appear in court. These limitations frustrated both
counsel and the client, the one who wanted to help and the other
who needed it and usually could not afford it from civilian
sources.
After a period of coordination with local bar associations a
"Pilot Legal Assistance Program" was approved in 1971. Under
this authority, SJA's could make arrangements with local bar
associations and courts under which qualified Corps members
could appear in minor, e.g., Small Claims Court proceedings on
behalf of soldier clients. The legal assistance officer could also
advise on more subjects and take a more positive role in helping
his clients. The program was of obvious benefit to the soldier; it
also increased the professional satisfaction of the Corps members
assigned such duties.
The politicized war caused more and more new problems for
the litigation specialists. Although the Korean War experience
presaged this slightly, it nevertheless was unprecedented for
Reservists to defend an absence charge with a claim that the war
was illegal or for a draftee to resist induction because of his
"conscientious objection" to this one kind of war rather than to all
war.
This same period brought about another kind of challenge:
T h e personnel of the court, counsel, and the
accused recessed to nearby bunkers because of a VC
Wiet Cong] rocket and mortar attack.
General Hodson quoted this as a recurring line in court-martial
transcripts received from Vietnam. Courts-martial had been tried
in combat situations in earlier wars, but the operation in Southeast
Asia was different. Its details have been accumulated in the Amy's
Vietnam Stwlies series and will not be repeated here. There were,
however, differences which affected the Corps and its activities
which ought to be mentioned.
Both legal and administrative problems were generated by this
war fought among Ho Chi Minh's "fish in the sea." For example,
where everyone is a potential warrior and everywhere a potential
battlefield, there is no "front," and the essential claims determina-
tion of combat o r noncombat damages is hard. Also, ground
travel for judges, counsel and legal assistance officers is often too
perilous. Such circumstances required organizational adjustments,
such as placing legal officers with small units (brigades and
groups) to increase their availability to the troops and the
establishment of special units in secure areas to which accused
could be transferred for trial.
The time between passage of the Military Justice Act of 1968
and its effective date, August 1, 1969, had been put to good use
by the Army. Some of its requirements were anticipated, as by
early introduction of qualified counsel into special courts, and the
figure 66
figure 67
WHILE ON AN OVERSEAS VISIT TO LONDON,TJAG GEORGES.
PRUGH,LEU, JOINS HIS BRITISHCOUNTERPART, MAJORGENERAL
JOHNROBERTSON, D.A.L.S., A T GRAY'SINNTO VIEWTHE WINDOW
GIVENBY THE ABA TO COMMEMORATE THE DESTRUCTION
OF THE
HALLBY ENEMY BOMBSDURING WORLDWAR11
under one administration and included both the appellate counsel
and case examiners necessary to conduct the statutory review of
courts-martial. Located in the leased Nassif Building at Bailey's
Crossroads in Falls Church, Virginia, its physical and administra-
tive separation from the Office of The Judge Advocate General
and Headquarters, Department of Army, contributed to the
maintenance of the concept of an independent judiciary, yet
provided the judges a needed "home" with the general Army
community. General Hodson ended his recall period and reverted
to retired status in March of 1974.
The new Judge Advocate General in July 1971, was Major
General George Shipley Prugh.
* * *
MAJORGENERAI. GEORGE SHIPLEY,PRUGH
George Shipley Prugh was born in Norfolk, Virginia, on June 1, 1920. In
1941, he graduated from the University of California, at Berkeley, receiving
a Bachelor of Arts degree in political science. From January 11, 1939, until
August 6, 1940, he had enlisted service in the 250th Coast Artillery
Regiment, California National Guard, being discharged to enter ROTC at
the University of California. At Berkeley, he commanded the Coast Artillery
ROTC regiment and received his commission as a second lieutenant, CAC,
ORC, in March 1942, while enrolled in the study of law at Boalt Hall,
University of California. He entered on active duty on July 10, 1942, at San
Francisco, California.
His initial assignment was with a 155-mm. gun battery, later serving as S-
3, in the 19th Coast Artillery Regiment, Fort Rosecrans, San Diego,
California. In 1944 he joined the 276th Coast Artillery Battalion (155-mm.
gun) as battery commander in New Guinea and served there and in the
Phillippines (Leyte and Luzon). He returned to the United States in
February 1945, was separated from active duty in May of that year, and
entered Hastings College of the Law, University of California, in San
Francisco. While still a student, he accepted a Regular Army commission in
November 1947. In May 1948 he received the degree of Juris Doctor and
reported for duty at Headquarters, 6th Army, serving there until his
admission to the California Bar and subsequent assignment to the Office of
The Judge Advocate General, Department of the Army, at the Pentagon.
He was transferred to JAGC in July 1949. After a year's duty with the
Military Justice and Claims and Litigation Divisions, OTJAG, he was
assigned to duties as Trial Counsel, Wetzlar Military Post in Germany. In
1951 he became the Executive Officer and later Staff Judge Advocate,
Rhine Military Post (later Western Area Command) in Kaiserslautern,
Germany. He returned to OTJAG in June 1953, where he served as a
member of the Board of Review, and then in the Opinions Branch, Military
Justice Division.
In 1956-57, he attended Command and General Staff College, Fort
Leavenworth, Kansas, and upon graduation reported for duty as Deputy
Staff Judge Advocate, 8th United States Army, in Korea. In 1958 he began
a three-year tour as Deputy Staff Judge Advocate and Assistant Executive
for Reserve Affairs, 6th Army, Presidio of San Francisco, and then attended
the U.S. Army War College, Carlisle Barracks, Pennsylvania, graduating in
1962. In that year he became Chief of OTJAG's Career Management
Division, and then Executive to The Judge Advocate General in 1963.
DuAng this latter tour he also received the Master of Arts degree in
International Affairs from George Washington University.
In November 1964 he became Staff Judge Advocate, United States
Military Assistance Command, Vietnam. In August 1966 he assumed the
duties of Legal Adviser, U.S. European Command, in Saint-Germain-en-
Laye, France, and later Stuttgart, Germany. On May 1, 1969, he became the
Judge Advocate, United States Army, Europe and 7th Army at Heidelberg,
Germany. Later that year, in November, he was promoted to the grade of
brigadier general.
He was reassigned to Department of the Army, Washington, D.C., in June
1971, and became The Judge Advocate General on July 1, 1971, in the
grade of Major General.
The legacy of General Prugh's TJAG tour has been chronicled in the
accompanying text but one highlight ties him to a great tradition of the
Corps. He will be remembered for his activist role in the area of
international law and the law of war. Just as TJAG Davis had participated in
the early 20th century international conferences at The Hague, General
Prugh participated in the United States delegation to the Geneva meetings
of the International Committee of the Red Cross and the Swiss-hosted
diplomatic conference dealing with the modernizing of the Geneva Conven-
tions of 1949. One of the early meetings-in the Spring of 1974-
considered application of the rules for protection of the innocent victims of
war to those injured or captured in the newly characterized "wars of
national liberation."
General Prugh retired from his TJAG duties in the summer of 1975. He
is now Assistant Dean at the Hastings College of the Law, University of
California.
Public Documents
A Manual for Courts-Martial, Courts of Inquiry, and Retiring Boards, and
other Procedure Under Military Law. rev. ed. Washington: Govern-
ment Printing Office, 1905.
A Manual for Courts-Martial, Courts of Inquiry, and Retiring Boards, and
other Procedure Under Military Law. Washington: Government
Printing Office, 1916.
A Manual for Courts-Martial, U.S. Anny, 1921. Washington: Government
Printing Office, 1920.
A Manual for Courts-Martial, U.S. Army, 1928. Washington: Government
Printing Office, 1927.
Annual Report of the Army Service Forces for the Fiscal Year. Washington:
Government Printing Office, [1943, pp. 199-202.
Annual Report of the Army Service Forces for the Fiscal Year 1944.
Washington: Government Printing Office, [1944], pp. 234-40.
Annual Report of the Army Service Forces for the Fiscal Year 1945.
Washington: Government Printing Office, [1945], pp. 256-71.
Annual Report of the United States Court o f Military Appeals and The Judge
Advocates General of the A m d Forces Pursuant to the Unqorm Code of
Military Justice For the Period May 31, 1951 to May 31, 1952.
Washington: Government Printing Office, 1952.
Annual Report of the United States Court o f Military Appeals and The Judge
Advocates General of the Armed Forces and the General Counsel of the
Department of the Treasury Pursuant to the U n i f m Code of Military
Justice For the Period June 1 , 1952, to December 31, 1953.
Washington: Government Printing Office, 1954.
Annual Report of the United States Court of Military Appeals and The Judge
Advocates G e w a l o f the A m d Forces and the General Counsel o f the
Department of the Treasury Pursuant to the U n i j i m Code of Military
Justice For the Period January 1 , 1954 to- December 31, 1954.
Washington: Government Printing Office, 1955.
Annual Report of the United States Court of Military Appeals and The Judge
Advocates General of the A m d Forces and the General Counsel of the
Department of the Treasury Pursuant to the U n $ m Code of Military
Justice For the Period January 1 , 1955, to December 31, 1955.
Washington: Government Printing Office, 1956.
Annual Report of the United States Court of Military Appeals and The Judge
Advocates General of the Armed Forces and the General Counsel of the
Department of the Treasury Pursuant to the Unijiorm Code of Military
Justice For the Period January 1, 1956, to December 31, 1956.
Washington: Government Printing Office, 1957.
Annual Report of the United States Court of Military Appeals and The Judge
Advocates General of the Armed Forces and the General Counsel of the
Department of the Treasury Pursuant to the Uniform Code o f Military
Justice For the Period January 1, 1957, to December 31, 1957.
Washington: Government Printing Office, 1958
Annual Report of the United S W s Court of Military Appeals and The Judge
Advocates General of the Armed Forces and the General Counsel o f the
Department of the Treasury Pursuant to the Uniform Co& of Military
Justice For the Period January 1, 1958 to December 31, 1958.
Washington: Government Printing Office, 1959.
Annual Report of the United States Court of Military Appeals and The Judge
Advocates General of the Armed Forces and the G e w a l Counsel of the
Department of the Treasury Pursuant to the Uniform Code of Military
Justice For the Period January 1, 1959, to December 31, 1959.
Washington: Government Printing Office, 1960.
Annual Report of the United States Court of M i h r y AppeaLs and The Judge
Advocates General o f the Armed Forces and the G e w a l Counsel o f the
Department of the T r e a s u ~Pursuant to the Uniform Code of Military
Justice For the Period January 1, 1960, to December 31, 1960.
Washington: Government Printing Office, 1961.
Annual Report of the United S h k s Court of Military Appeals and The Judge
Aduocates General o f the Armed Forces and the General Counsel of the
Department of the Treasury Pursuant to the Unijorm Code of Military
Justice For the Period January 1, 1961 to December 31, 1961.
Washington: Government Printing Office, 1962.
Annual Report of the United States Court of M i l i t a ~A@eals and The Judge
Advocates General of the Armed Forces and the G e w a l Counsel of the
Department of the Treasury Pursuant to the Unijorm Code of M i l i t q
Justice For the Period January 1, 1962, to December 31, 1962.
Washington: Government Printing Office, 1963.
Annual Report of the United States Court of Military Appeals and The Judge
Advocates General of the Armed Forces and the G e w a l Counsel of the
Department o f the Treasury Pursuant to the Uniform Code of Military
Justice For the Period January 1, 1963, to December 31, 1963.
Washington: Government Printing Office, 1964.
Annual Report of the United States Court of Military Appeals and The Judge
Advocates General of the Armed Forces and the General Counsel o f the
Department of the T r e a s u ~Pursuant to the U n i j m Code of Military
Justice For the Period January 1, 1964 to December 31, 1964.
Washington: Government Printing Office, 1965.
Annual Report of the United States Court of Military A@eals and The Judge
Advocates General of the Armed Forces and the G e w a l Counsel of the
Department of the Treasury Pursuant to the U n i j i m Code o f Military
Justice For the Period January 1, 1965 to December 31, 1965.
Washington: Government Printing Office, 1966.
Annual Report of the United States Court of Military Appeals and The Judge
Advocates Genmal of the Armed Forces and the General Counsel of the
Department of the Treasury Pursuant to the Uniform Code of Military
Justice For the Period January 1, 1966 to December 31, 1966.
Washington: Government Printing Office, 1967.
269
Annual Report o f the U.S. Court of Military Appeals and The Judge Advocates
General of the Armed Forces and the General Counsel of the Department
of Transpmtatzon Pursuant to the U n i j i i Code of Militaly Justice For
the Period January 1, 1967, to December 31, 1967. Washington:
Government Printing Office, 1968.
Annual Report of the U.S. Court of Military Appeals and The Judge Advocates
General of the Armed Forces and the General Counsel of the Department
o f Transportation Pursuant to the Unifmn Code of Military Justice For
the Period Jan- 1, 1968 to December 31, 1968. Washington:
Government Printing Office, 1969.
Annual Report of the U.S. Court o f Military Appeals and The Judge Advocates
General o f the Armed Forces and the General Counsel o f the Deplrtment
of Transportation Pursuant to the Uniform Code o f Military Justice For
The Period January 1, 1969 to December 31, 1969. Washington:
Government Printing Office, 1970.
Annual Report of the U.S. Court of Military Appeals and The Judge Advocates
General of the Armed Forces and the General Counsel of the Department
of Transportation Pursuant to the U n i f m Code of Military Justice For
the Period January 1, 1970 to December 31, 1970. Washington:
Government Printing Office, 197 1.
Annual R e p of the U.S. Court of MiIihry Appeals and The Judge Advocates
General of the Armed Forces and the General Counsel of the Depa-nt
o f Transportation Pursuant to the U n i f o n Code of Militmy Justice For
the Period January 1, 1971 to December 31, 1971. Washington:
Government Printing Office, 1972.
Annual Report of the U.S. Court of MiIitary Appeals and The Judge Advocates
General bf the Armed Forces and the General Counsel of the Department
of Transportation Pursuant to the U n f m Code of M i l i t a ~Justice For
the Period January 1, 1972 to December 31, 1972. Washington:
Government Printing Office, 1973.
Annual Report of the U$. Court of Military Appeals and The Judge Advocates
General of the Armed Forces and the General Counsel of the Department
of Transportation Pursuant to the Uniform Code of Military Justice For
the Period January 1, 1973 to December 31, 1973. Washington:
Government Printing Office, 1974.
Annual Report, Services of Supply, for the Fiscal Year Ending June 30, 1942.
Washington: Government Printing Office, 11942, pp. 87-89.
Manual for Courts-Martial, U.S. Amy, 1949. Washington: Government
Printing Office, 1948.
Manual for Courts-Martial, United States, 195 1. Washington: Government
Printing Office, 1950.
Manual for Courts-Martial, United States, 1969. rev. ed. Washington:
Government Printing Office, 1969.
Military Laws of the United States. 8th ed. Washington: Government
Printing Office, [1940].
Militaq Laws of the United States (Army). 9th ed. Washington: Govern-
ment Printing Office, [1950].
New Orleans Daily Delta, 10 September 1847, p. 2.
New York T h s , 1 February 1966, p. 35.
New York Times, 7 August 1940, p. 19.
New York Tims, 27 June 1957, p. 25.
New York Times, 24 August 1917, p. 1.
New Ymk Times, 12 December 1917, p. 7.
Subcommittee on Veteran Affairs of Senate Committee on Labor and
Public Welfare. Medal of Honor Recipents 1863-1963.
The Anny Almanac. Washington: Government Printing Office, [1950].
The Committee on The Uniform Code of Military Justice, Good Order
and Discipline in the Army. Report to Honorable Wilbur M. Brmcker,
Secretary of t h Amy. Washington, D.C.: Government Printing
Office. [1960].
U.S. Congress, House. Proceedings of the General Court-Martid in the Case
of Adptunt Gewal Roger Jones. Doc. 104, 2 1st Cong., 1st Sess.,
1830.
. T r i a l of Henry Wirx Exec. Doc. 23, 40th Cong., 2d Sess., 1868.
U.S. Congress, Senate. Committee on Military Affairs. Hearings on S.
5320 Before the Senate Committee on MiIitary Affairs, 65th Cong., 2d
Sess., 1919.
P r o c e e d i n g s and Report of the Board of Anny Ofjcers in the Case of