ESTABLISHMENT OF MILITARY JUSTICE .

847
regard to the discipline of his command might lead to more disastrous result s
than an occasional miscarriage of justice, which in any instance will largel y
be individual in character . If it can be assured that this power is to be use d
by the Judge Advocate General, whoever he may be, only in the clearest cases ,
and that it will not become such an engine as to lead division commanders to
believe that the ultimate power of discipline is removed from their hands, then ,
of course, there is little objection . Whether this can be done is, of course, no t
a matter of law, but a matter of administration . I desire to emphasize thes e
points, since, as stated at the beginning of this brief memorandum, the dis-
turbance of settled conditions should be decided upon only after a consideratio n
of all points that may be brought forward by one familiar with the subject.
HERBERT A. WHITE,
Lieutenant Colonel, Judge Advocate ,
Assistant to the Judge Advocate General .

EXHIBIT 34 .

WAR DEPARTMENT ,
OFFICE OF THE JUDGE ADVOCATE GENERAL ,
Washington, November 27, 1917 .
Memorandum for the Secretary of War :
On November 10, 1917, there was presented for your personal consideration
by Gen . Ansell, Acting Judge Advocate General, a memorandum brief in sup-
port of his action on the trial and conviction for mutiny of 12 or 15 non -
commissioned officers of Battery A of the Eighteenth Field Artillery . In th e
discussion of the record of the case itself Gen . Ansell had come to the conclu-
sion that the evidence did not warrant a conviction of the offense of mutiny ;
that many errors of law appeared on the face of the record, and that, whil e
the court had jurisdiction and "its judgment and sentence for that reaso n
could not be pronounced null and void," errors in law and the unfairness o f
the trial " justify, upon revision, a reversal of that judgment ." Gen . Ansell,
first inviting attention to section 1199, Revised Statutes, providing that " the
Judge Advocate General shall receive, revise, and cause to be recorded th e
proceedings of all courts-martial, courts of inquiry, and military commissions ,
and perform such other duties as have been performed heretofore by the Judg e
Advocate General of the Army," concludes his review of the case as follows :
" In the exercise of the power of revision conferred upon me by section 1199 ,
Revised Statutes of the United States, I hereby set aside the judgment of con-
viction and the sentence in the case of each of these several defendants an d
recommend that the necessary orders be issued restoring each of them to duty . "
I shall not address myself, for the present, to the merits of the case, or t o
the proper administrative action that should be taken in respect of it, bu t
rather to the statement of Gen . Ansell in his memorandum brief that an ili-
considered and erroneous change of attitude on the part of the Judge Advocat e
General's office that occurred within a score of years after the close of th e
Civil War has profoundly and adversely affected the administration of militar y
justice in our Army ; that " errors of law, appearing on the record, occurrin g
in the procedure of courts-martial having jurisdiction, however grave an d
prejudicial such errors may be, are absolutely beyond all power of review " ;
that you and your immediate military advisers can never appreciate the ful l
extent of injustice that has resulted to our soldiers through the operation o f
this rule ; that a proper sense of the injustice can be felt only by those wh o
exercise immediately the authority of the Judge Advocate General's office ; an d
that even those thus experienced can gather a full impression of the wron g
done only by complete mental inclusion of that vast number of cases wher e
concededly corrective power ought to have been but was not exercised in eac h
year of the past forty-odd years . Gen . Ansell adds :
" During the past three months, in scores, if not hundreds, of cases carryin g
sentence of dishonorable expulsion from the Army with the usual imprison-
ment, this office has emphatically remarked the most prejudicial error of la w
in the proceedings leading to the judgment of conviction, but impelled by th e
long-established practice, has been able to do no more than point out the erro r
and recommend Executive clemency . "
In handling the memorandum brief to me for my study you asked my atten-
tion to these statements and expressed your surprise that such a situation as i s