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ESTABLISHMENT OF 'MILITARY JUSTICE .

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kept of all proceedings had thereupon " ; and so the same words were carrie d
forward in section 1199, Revised Statutes, where they remain to base th e
ground of this contention .
' I find nothing in the legislative development that is even worthy of re -
mark in this connection . The word revise (or revision) is the only granting
word now as it was in the beginning . There is precisely the same power, n o
greater and no less . If history is to be invoked, therefore, we must look t o
the administrative and not to the legislative history of the statute . And this
brings us to -
3 . ADMINISTRATIVE HISTORY OF THE DEPARTMENTAL PRACTICE .

This administrative history has been appealed to in Gen . Ansell's brief to


the extent that it is asserted that " the records of this office indicate tha t
Judge Holt, the Judge Advocate General of the Army during the Civil Wa r
period, did revise proceedings in the sense here indicated . "
Judge Advocate Gen. Holt was Secretary of War before he was Judg e
Advocate General. His position at the bar of the United States was a n
enviable one . If this statement of his construction of the law is accurate i t
would be most persuasive upon me, as I think it would be upon you . Gen .
Ansell, however, cites no instance from the records of the Judge Advocat e
General's office where Judge Holt has indicated such a view, and such exami-
nation of the records of Judge Holt's action upon courts-martial proceeding s
during the Civil War period as I have been able to make does not disclose
a single instance of the kind mentioned . Candor compels me to state
that in the limited time that I have had to prepare this memorandum n o
systematic search of the hundreds of records bearing the stamp of Judg e
Holt's action could be made, and therefore the positive assertion that ther e
exists no single instance of this kind would not be warranted . However, ther e
was revealed from these old and interesting books very significant circum-
stances most emphatically indicating that Judge Holt never contended for no r
exercised the power that Gen . Ansell says was vested in him by the statute,
exemplified in the following reference to Judge Holt's opinions :
(a) I find on page 269 of Volume II of the Records of the Bureau of Militar y
Justice (Dec . 16, 1864) over Judge Holt's own signature a short review of the
case of Pvt . Hiram Greenland, who was tried by a court-martial convened b y
Gen . Howe . The record failed to show the date of the trial or whether ther e
was present a quorum of the court . If Judge Holt had been exercising a n
indigenous power, such as it is contended the could exercise, he would hav e
taken the action attempted to be taken in the instant case that raises th e
present contention, and would have reversed the judgment . Instead of doin g
so, his indorsement " To the President" reads :
" There are fatal irregularities invalidating the whole proceedings an d
rendering the sentence inoperative, and it is recommended that it be so de-
clared by the President. "
(b) Again, I find Judge Holt writing to Col. W . N. Dunn, Assistant Judge
Advocate General . under the caption, " Bureau of Military Justice, " and under
(late December 27, 1864, in reference to the case of James Scott, corporal,
Ninth Michigan Cavalry, in which the record was fatally irregular in that th e
arraignment of the prisoner and the reception of his plea had been accomplishe d
prior to the administration of the oath to the court . Instead of reversing the
judgment, as he of course would have done had he deemed that the power wa s
in him to do so . he writes as follows :
" In similar cases returned from this office, to the officer charged with th e
duty of revision or executing of the sentence, it has been found advisable t o
direct his attention to the fact that a proper course to pursue with irregularitie s
of proceedings which can not be corrected, rendering the sentence inoperative ,
is to revoke the order of execution and, if the parties are not liable to be sub-
jected to another trial, to release them ." '
(c) In the case of W . H. Shipman, in which the charge had been draw n
under the general article of war for an offense clearly cognizable under a
specific article, Judge Holt expressed the opinion that such an irregularit y
rendered the sentence void, but instead of reversing the judgment or attempt-
ing to give inherent effect to his own opinion, he addressed the Secretary o f
War . under date December 22, 1864, in part as follows :
" If this opinion is concurred in, the pleadings in the case must be held t o
be fatally defective and the sentence inoperative . "

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