History is said to repeat itself. Mr. Clode in his treatise on the military and martial law of England, says that in the English civil war of the 17th century the opposing armies of the king and of the parliament were governed under the same military code. So in 1775 the same thing happened in this country. At that time the "Ministerial" Army, as Gage's and Burgoyne's forces were called, was governed by the British Mutiny Act and Articles of War. When the Continental Congress raised an army in defense of the liberty of America, that assembly could find no military code better suited to their requirement than the then current British Articles of War, and accordingly on the 30th of June, 1775, they put forth Articles of War (sixty-nine in number) on the model of the English for the government of the Continental army.
The adoption of this code was followed on the 29th of July, 1775, by the creation of the office of "judge Advocate of the Army" to which on the same day William Tudor, a law pupil of John Adams and a leading counsellor of Boston, was elected. The title of Judge Advocate General was attached to this office on August 10, 1776, and the amended Articles of War, adopted on September 20, 1776, by the Revolutionary Congress of the United States provided that "The Judge Advocate General, or some person deputed by him, shall prosecute in the name of the United States of America."
William Tudor, having resigned in 1777, was succeeded by John Lawrance, a distinguished jurist, who had served with the army in the field both as a regimental and as a staff officer. Meanwhile certain deputy judge advocates were appointed for different armies and for the army at large.
Colonel Lawrance resigned in 1782, and was succeeded by his principal deputy, Thomas Edwards, who, so far as the records show, was the last incumbent of the office of judge Advocate General prior to the adoption of the Constitution.
Under the Act of March 3, 1797, reorganizing the army, Captain Campbell Smith, 4th Infantry, was appointed to the office of Judge Advocate to the army. He continued to hold the office till it ceased to exist by the force of the Act of March 16, 1802, which also reduced the line of the army to one regiment of artillery and two of infantry.
Next, we find that the Act of January 11, 1812, provided for the appointment of one Judge Advocate to each division, and the statute of April 24, 1816, "for reorganizing the general staff" increased this number to three for each division, but by the Act of April 14, 1818, this change
was repealed and the former number restored. Among the eighteen judge-advocates appointed under this act we find the name of Henry Wheaton, the eminent publicist, professor of law, and diplomat, whose work on the " Elements of International Law " is to-day one of the standard authorities.
By the operation of the Act of March 2, 1821, reducing the military establishment of the United States, the office of the Judge Advocate was discontinued, and remained so until the Act of March 2, 1849, authorized the President to appoint a suitable person as Judge Advocate of the army, to be taken from the captains of the army. Captain John F. Lee of the Ordnance Department was accordingly appointed, and held the office until it was superseded by the legislation of 1862.
The Act of July 17, 1862, created the office of Judge Advocate General, with the rank, pay and allowance of a colonel of cavalry, and authorized the appointment of a judge advocate, with the rank and pay of a major of cavalry, for each army in the field.
Under the Act of June 20, 1864, the Bureau of Military Justice was created, attached to, and made a part of, the War Department, during the continuance of the then existing War of the Rebellion. The Judge Advocate General was made the head of this Bureau and given the rank and pay of a brigadier general. The appointment of an Assistant Judge Advocate General with the rank and pay of colonel of cavalry was also authorized.
Upon the reorganization of the army under the Act of July 28, 1866, the Bureau of Military Justice with its organization was continued in operation and ten of the judge advocates then in office retained in service and soon after made part of the regular establishment of the army. By the, subsequent Act of April 10, 1869, this number was fixed at eight.
Under the Act of June 24, 1874, the office of Assistant Judge Advocate General was discontinued and no appointments in the corps of judge advocates were to be made until the number was reduced to four, which was to be the permanent number of the officers of that corps.
The Bureau of Military justice and the Corps of Judge Advocates of the army were by the act of July 5, 1884, consolidated under the title of "Judge Advocate General's Department," to consist of one Judge Advocate General with the rank, pay and allowances of a brigadier general, one Assistant Judge Advocate General with the rank, pay and allowances of a colonel; three Deputy Judge Advocate Generals, with the rank, pay and allowances of lieutenant colonels; and three judge advocates, with the rank, pay and allowances of majors, and under the same act the Secretary of War is authorized to detail such number of line officers as may be necessary to serve as acting judge advocates of Military Departments, who shall have the rank, pay and allowances of captains of cavalry. This is the present organization of the Judge Advocate General's Department, and under the authority just quoted there are present five officers of the line serving as acting judge advocates of Departments. These have been specialty selected from the first lieutenants of the line, who have studied law and been admitted to the bar.
Under the existing statutes the judge Advocate General is required "to
receive, revise and cause to be recorded the proceedings of all courts-martial, courts of inquiry, and military commissions and to perform such other duties as have been performed heretofore by the Judge Advocate General of the army," and under his direction the "judge advocates shall perform their duties." In connection with the duties thus specified the Judge Advocate General is required by existing regulations to render reports to the Secretary of War upon such cases tried by military courts as require the action of the President, as well as when applications for clemency or other relief are presented to the President or Secretary of War by persons who have been convicted by military courts. He also prepares and revises charges and renders opinions upon all such questions of military law as may be referred to him for opinion by the Secretary of War or the Commanding General of the army. He also assists the latter in the review of cases of courts-martial coming under his cognizance.
The "other duties" of the Judge Advocate General mentioned in the statute consist in the preparation of all sorts of legal papers, and in the rendering of opinions upon all questions of law arising in the administration of the War Department referred to him under the interior business regulations established by the Secretary of War. In this connection the Judge Advocate General is in effect the law officer of the War Department, holding practically the same relation of advisory counsel to the Secretary of War as is held by the several solicitors or Assistant Attorneys General towards the chiefs of the executive department to which they are attached.
The acting judge advocates and judge advocates detailed for duty at Department headquarters are under the immediate command of Department commanders, and their duties chiefly consist in preparing or revising charges, serving on general courts-martial, examining, revising and reporting upon the records of military courts received at the headquarters at which they are serving, and generally in assisting their immediate commanders in the examination of questions of law arising in the administration of their commands. These officers are frequently called upon to appear as counsel for the United States, or for officers or soldiers of the army in the courts of the United States, in habeas corpus and other proceedings as well as before the civil and criminal courts of the States and Territories within the command to which they are attached. It is therefore necessary that they should have a legal education and be members of the bar.
Since 1874, one of the judge advocates of the army has been from time to time assigned to duty as Professor of Law of the United States Military Academy, at West Point, New York.
In the preparation of the foregoing paper the writer has made free use of the "Sketch of the History and Duties of the judge Advocate General's Department" prepared by the Judge Advocate General and dated March 1, 1878.
This sketch would be incomplete without a reference to the effect produced by the Civil War upon the administration of military justice in the army, the Judge Advocate General's Department being the agency through which great changes were brought about.
It may justly be said that before the War of the Rebellion we had no mil-
itary jurisprudence. The jurisdiction exercised by military tribunals was withdrawn from public observation, their decisions were buried in the War Department. Writers on military law could draw under ordinary circumstances few materials from sources similar to those which furnish any writer on constitutional law both information and authority.
Scattered into small commands, occupying widely separated stations on a vast frontier, without connection by railroads or telegraphs, with superior headquarters located at a great distance, the greatest portion of our small army served for years preceding the war far removed from civilization, protecting the enterprising pioneer in his search for a new home in the far west. Beyond the reach of civil authority, obliged to maintain discipline among his troops, and in duty bound to give to the settlers within the vicinage and to the passing immigrant that protection of life and property which is in organized civil communities obtained through the local civil authorities, the commanding officer of a frontier station was often forced to resort to the law of necessity for the preservation of discipline within and good order and security without. Arbitrary punishments therefore had often to take the place of trials by courts-martial. Absolute master within, and from without the only power that could be invoked by the civilian for his protection, the commanding officer exercised more power than was ever contemplated to be conferred by the genius of our institutions upon a military officer in time of peace.
Under these conditions the call to arms sounded in 1861, and. the scattered regular forces, when replaced by volunteers, were collected and sent to the front. Many of their officers took high positions in the newly organized volunteer forces.
The men comprising these new forces, coming from all walks of life, brought up under the aegis of civil law, under which they could only be tried by their peers and according to the law of the land, did not take kindly to the arbitrary punishments for infractions of discipline, as administered to a great extent in the regular forces. The publicity of these punishments, the influence of the press, and the interest taken by the public at large in the citizen soldiery, as reflected by the members of Congress with a large number of their constituents in the ranks of the army of the Union; finally led to the abandonment of unauthorized punishments and of punishments not in accord with the spirit of public opinion of the times.
The importance of the administration of military justice under the military code and under the laws of war increased in proportion as the field of military operations was extended and new armies were raised. The agency which supervised this branch of staff administration in the army up to the beginning of the Civil War was without an organization capable of expanding and meeting the new demands made upon it. There was but one officer, and his duties had been confined to taking charge of the records of courts-martial. An eminent statesman and able jurist, the Hon. Joseph Holt, was appointed Judge Advocate General by President Lincoln upon the creation of that office by Congress in 1862, and a corps of judge advocates was created at the same time. Under this legislation and until the close of the war thirty-nine officers were appointed in that corps. They had generally
performed active service in the field as volunteer officers and all of them had a legal education. Previous to their appointment the administration of military justice in the field was almost entirely in the hands of volunteer officers. Among them were judges who had left the bench and lawyers who had abandoned their briefs to take up arms for the cause of the Union. Many of them found their way to places where their legal training made them useful to commanding generals in the discharge of their duties as convening and reviewing officers of courts-martial. As an evidence of the valuable and eminent services of these officers, as well as of those of the corps of judge advocates in their new field, it is only necessary to refer to the scholarly reviews of courts-martial proceedings published in the orders of the various armies.
During the great struggle for the supremacy of the Union every line of our military code was brought into practice and when necessary interpreted and construed. Military law is but a part of the law of the land, and there is no distinction between it and other portions of the law in respect to the rules according to which it should be construed, or in respect to the necessity of observing established principles in its administration. Besides this, nearly every crime known to the common law was brought within the jurisdiction of military courts.
Our military jurisprudence was thus founded during the most critical period of our national history by General Holt with the assistance of his able corps of judge advocates. To one of these—Colonel Winthrop—the army is indebted for a treatise on military law in which for the first time are collected for the benefit of the soldier, the lawyer, the judge and the historian, the precedents, decisions and opinions which have become part of our law military.
In substance and form our Articles of War were but little changed during the War, of the Rebellion. During the past eight years, however, important improvements have been made in our military code. Previous convictions are now authorized to be taken into consideration in awarding punishments upon conviction; enlisted men are furnished with counsel at their request; judge-advocates of courts-martial are excluded from the closed sessions of courts; a code of punishment has been established by the President under authority of an act of Congress; summary courts have been created; judge advocates and trial officers of summary courts are authorized by law to administer oaths in military cases, etc. Nearly all of these changes had their origin in recommendations emanating from the office of the judge Advocate General.
The duties of judge advocates are inseparable from the military system of every civilized nation. But under the genius of our institutions, officers educated both in military and civil law are necessary adjuncts of our military administration. Subordination of the military to the civil authorities is an axiom in our government; the military person is amenable to the jurisdiction of the civil courts of the land, both state and national. As an eminent statesman aptly remarked, "this is a government of law, and all authority exercised must find its warrant thereunder."
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