ESTABLISHMENT OF -MILITARY JUSTICE : 845.

9. Nor has the power here contended for ever been questioned by the civi
courts or other civil authority . To be sure, there are many expressions in ad-l
judicated cases to the effect that the duly approved sentence of a court-martial ,
when the court has proceeded within its jurisdiction and the rules governin g
its procedure is as final and unassailable as a decision of a civil court of las
resort . But it must be remembered, of course, that in each of these cases th et
court was speaking of collateral attack in the civil courts on the proceeding s
of a court-martial and did not have in view the power of the department itsel f
to correct court-martial judgment by way of direct revision of it . I have also
examined many expressions of opinion by the Attorney General and find tha t
these expressions have had to do generally with cases in which the fina l
approval has been by the President himself and 'go only to the question o f
whether such cases can be reopened by the President or his successor for th e
purpose of undoing what he has once legally done . I have not found that an y
authority has ever questioned the revisory power of this office to correct error s
of law in court-martial procedure when they amount to a denial of justice .
And I may be permitted to say that should I find such holdings by any authorit y
other than the highest court of the land, I should not hesitate to question th e
soundness of the decision.
In this connection, I may say that it was suggested to me by the presen t
Judge Advocate General himself that the finality attributed by the article o f
war to the power . of the several reviewing authorities might be thought to
- militate against or negative the . view I advance. This could hardly be true.
The statutory power of the Judge Advocate General of the Army conferred b y
1199, Revised Statutes, stands unaffected by anything said in the law as to th e
power of appointing authorities . Indeed, the statutes are not in pari materia.
They exist for entirely different purposes . They establish different functions ,
all of which have independent spheres . The general powers of correction con-
ferred upon appointing authorities by the Articles of War existed prior to th e
enactment of the statutes now brought forward in 1199, Revised Statutes, an d
also concurrently with them, without thought of conflict . There is, of course, a
field of operation for each . The concept of finality referred to is the finalit y
within the system, the finality with which all lawyers are familiar, and whic h
must exist in order that there may be a review at all . A judgment of an in-
ferior court must be a final judgment before it can be subjected to review in a n
appellate court. The action of the appointing or confirming authority directly
giving effect to the judgment of the court itself gives finality to that judgment ,
that is, that completeness and integrity without which there would be nothin g
for this or any other authority to review . Such judgments are operative as fina l
until and unless revised upon review . This concept of finality is so familiar
to lawyers as to require no further discussion .
10. Such is the law, and there is a pressing necessity at this time that we go
back to it, revive it, and act under it . Daily this office reviews records whic h
show that in the trial some substantial rights of persons standing before courts -
martial accused of crime have been flagrantly violated or that convictions hav e
been secured on wholly insufficient evidence . Others show that charges an d
specifications are sometimes laid under the ninety-sixth (the general) articl e
of war for acts that are not properly to be regarded as military offenses a t
all . And quite as frequently cases are encountered in which men have bee n
convicted of serious offenses where upon the evidence the offense committed
was not the offense charged or for which they were tried . Officers of the Army ,
even of the Regular Army, are persons unlearned in the law, and, as fallibl e
beings, may be expected from time to time to commit such errors in court -
martial procedure as operate to deny the accused right and justice and resul t
in his unlawful punishment . and such errors are even more to be expected now ,
as our Army is expanding and thousands of new officers are brought into th e
service who have had no military training and no familiarity with military la w
and the customs of the service. For this reason alone there should be th e
closest supervision .
But the situation may also be viewed from another aspect . As an America n
institution, our Army must be maintained under law . Our Army can never b e
the most successful Army it is capable of becoming except it have the highes t
regard for the rights of the enlisted men, as those rights are established by law .
Indeed, the higher regard for those rights the greater will be the popular confi-
dence in the Army . For the first time in the history of this country we hav e
in fact a truly democratic and popular Army . It has come from the people .
Tens of thousands of homes have been affected . In the welfare of the Arm y
millions are concerned directly and the entire public interested generally . Ex-