9. Setting up and recognizing no legal standards, no lawyers, no judges in a word, being lawless-it contemplates no errors of law and makes no provisions for their detection or correction.

10. Military autocracy is the frankly expressed fundamental theory of our code. By it our soldiery is governed not by law but by the unregulated will of a military commander. It is, in its entirety, a government by man and not by law. No finer example of such is to be found in any modern government.

II. By the adoption of this code Congress abdicated its constitutional prerogative to make the rules for the discipline of the Army, has authorized military command to make those rules and to do as it pleases in applying them, restrained by no law, no judge.

12. The Judge Advocate General of the Army and his office, the head of the Bureau of Military Justice, the only lawyer and the only legal establishment contemplated in the system, are by the laws of Congress made expressly subject to the "supervision" and control of the highest military authority, the Chief of Staff of the Army.

13. The result has been, as when men are subjected to the power of other men unregulated by law the result must ever be, a large measure of oppression, gross injustice, and discipline through terrorization.

14. Notwithstanding the tenacious adherence of our War Department to the existing system, it may be well for us to remember that even in times past it has been the subject of criticism of those of our most distinguished soldiers who have studied it-among whom may be mentioned Sherman, Fry and Lee and other Confederate leaders-to the effect that it is a system unsuited to our citizen armies.

Courts-Martial: Criticisms and Proposed

Reforms

BY GEORGE GLEASON BOGERTI

The following headlines are from the Sunday edition of a metropolitan newspaper, printed last January:

"The thing that is called Military Justice. Concrete official evidence which establishes that United States Military Courts Martial indorse and approve of oppression and arbitarily Impose Gross Injustice."1

The following are the words of a Congressman who saw service in the army during the recent war:

*

"I have seen injustice in the Army. The existing military code does not establish and guarantee justice to the enlisted man of the Army. I speak more strongly than that. If followed, in many cases it does not permit of justice. *The code and the procedure under it are offensive to any enlightened sense of natural justice, and equally offensive to those fundamental principles of law which are elemental in our institutions and which reflect our civilization."2

Another Congressman thus addressed the House:

"It is conceded on all sides that courts-martial procedure during the present war has been atrociously harsh, brutal, and unjust. There is hardly a Member of Congress who has not directly received convincing evidence of that fact through innumerable justified complaints from his constituency; establishing beyond all doubt that courts-martial are not worthy the name of courts."3

A number of lawyers who held commissions during the war in the Judge Advocate General's Department and who have been recently discharged have formed an association and issued a statement containing this paragraph:

"The present system of military justice is a system of practiced injustice. We are lawyers who were commissioned as officers in the Judge Advocate General's Department. We were amazed and shocked by the court-martial system. We found that it secures no

la Professor of Law in the Cornell University College of Law; recently lieutenant colonel and judge advocate 78th Division, A. E. F.

IN. Y. World, Jan. 19, 1919.

'Speech of Hon. Royal C. Johnson, House of Rep., Feb. 27, 1919. 'Speech of Hon. Dan V. Stephens, House of Rep., March 3, 1919.

adequate protection of men charged with military crimes; it permits the conviction of innocent men, as well as the imposition of unduly harsh sentences upon men who have been guilty of trivial offenses."'4 And a former Brigadier General and Acting Judge Advocate General of our army states:

"I wish to say with all the emphasis I can put into the statement that, by reason of our utter disregard of those principles of our jurisprudence which must govern every just trial, no lawyer who believes in and wants to see established justice regulated by law can have confidence in or respect for the results of our courts-martial during this

These and similar charges have aroused the country and led to investigation by congressional committees, by a committee of the American Bar Association, consisting of five experienced and able lawyers, and by the army board on which sat a regular army officer of the rank of major general, a national guardsman who had commanded a division in France, and a prominent lawyer who had served as the judge advocate of a division for many months. The two last named committees have made reports and recommendations and a bill to reform courts-martial has been introduced in Congress and is now pending in committee.6

The charges are most serious. They imply that 4,000,000 men, recently under arms in aid of their country, have been at the mercy of their military commanders, with no rules of procedure or evidence, no checks or safeguards to protect them from unjust treatment. And they further imply that army officers have taken advantage of this arbitrary power to punish innocent men and to administer over-severe penalties to guilty soldiers. The picture is that of a military tyrant sitting haughtily in his office with a trembling soldier before him; a complaint against the soldier for an infraction of army rules; a hurried, summary questioning of the accuser and one or two subordinates, no thorough investigation; no opportunity to the accused to secure counsel, speak for himself or obtain witnesses; no standard of proof which must be met; no impartial judge or jury but rather a tyrant, anxious to punish his men; no clear definition of the crime charged and its elements; no rules of law or evidence considered; no man learned in the law at hand or having any guiding influence; and at the end a crushing sentence with no higher authority to look to for relief.

'As reported in N. Y. Times, March 28, 1919.

"Address of S. T. Ansell, before Pa. Bar Ass'n, June 26, 1919. "Known as the Chamberlain Bill; S. 64, H. R. 367.

Is this an accurate portrayal of the administration of justice in the army? As a lawyer and law teacher who served in the army for more than two years, first at a training camp practically as a private, and later successively as regimental adjutant, trial judge advocate, and division (reviewing) judge advocate, the writer submits his views. At Camp Dix and in France over 4,600 cases of all sorts passed through my office and in a great majority of instances were either scrutinized for error, reviewed for the division commander, or tried by me.

Practically from the date of organization to its dissolution I had the opportunity of observing the functioning of courts-martial, inferior and general, in a national army division composed of average officers and men. I have no bias upon the question, inasmuch as I have never had personal acquaintance or dealings with any of the principal parties to the so-called "controversy" which has arisen, nor have I any end to gain by praising or condemning the present system, since I am honorably out of the service and have no expectation of re-entering it. Let us examine the several stages of a military trial and discuss the specific criticisms thereof and the various remedies proposed.

Preliminaries to the Trial

Preferment of the charge.

The first step in the trial of an officer or soldier is the drafting and presentation of the charge. This consists of writing the name, rank, organization and similar personal statistics regarding the accused on a sheet of paper, following it by a charge that the accused has violated a certain article of war, setting forth in a specification the details of such alleged violation, signing the charges and forwarding them to the officer exercising summary court-martial jurisdiction over the accused, as, for example, in the case of a regiment, the regimental commander. This may be done by any officer."

The complaints here are that an officer may arbitarily prefer charges regardless of their real justice, that enlisted men (that is non-commissioned officers and privates) suffer injustice from not being able to prefer charges, and that charges are preferred in many cases where the matter should have been disposed of without a trial, that is, by summary disciplinary punishment awarded by the man's commander, as, for example, by the assignment of extra fatigue duty or restriction of pass privileges. General Ansell says, "Any officer can prefer charges against a man and at his will can succeed in getting him tried." "Any officer in the army may prefer charges against

'Man. Cts. Martial, pars. 62-64, 75. Address before Pa. Bar Ass'n, p. 10.

an enlisted man; the charges may be and frequently are, the result of caprice and petty tyranny." "A man can be court-martialed at the mere whim and caprice of any officer in the army."10

The American Bar Association report, majority view, refers11 to "the enormous and absolutely unnecessary number of court-martial cases."

The Chamberlain Bill proposes 12 (1) to require an oath by the officer or soldier preferring charges that he has personal knowledge of the facts or that he has investigated the case and believes the charge true; (2) to allow all persons subject to military law to prefer charges.

The mere preference of a charge does no harm, unless it is entertained and referred for trial. In civil life there exists a power on the part of every citizen maliciously to start prosecutions or civil actions, but actions for malicious prosecution, non-suits and bills of costs effectively prevent such power from being abused. As I shall later submit that the great bulk of charges are closely examined and the ungrounded weeded out and never referred for trial, I do not deem this criticism serious. The possibility of criticism and reprimand by his superiors effectively checks any officer from bringing forward baseless charges.

I see no objection to requiring the charges to be verified by an affidavit, although I do not believe there has been any appreciable number of charges preferred during the war without serious thought and genuine belief that a prima facie case existed.

That many officers have put men before courts when they should have used their disciplinary power under Article of War 104, and given the men fatigue duty or restricted their privileges, is undoubtedly true. During the year ending June 30, 1918, the number of enlisted men tried by summary court was 228, 839.13 In our division (having perhaps 20,000 as an average daily strength) from July 1, 1918 to April 30, 1919 (10 months) we had 1,520 trials by summary and special courts. This tendency to use the courts for small offenses is a criticism of the officers, not of the system. The remedy is instruction of the officers in methods of discipline. During the late war the great majority of officers were inexperienced and such an error was natural.

The proposal to allow enlisted men to prefer charges is harmless but unnecessary. It is predicated on a theory which seems to run through the Chamberlain Bill, namely, that officers do not look after the interests of enlisted men, are not anxious to see justice done to

'Congr. Johnson before H. R., Feb. 27, 1919.

10Congr. Stephens before H. R., Mch. 3, 1919.

11p. 37.

12 Art. 18.

"Rep't Judge Adv. Gen., 1918.