to a trial, justice cannot be achieved unless the methods of the trial are themselves just. The procedure leading to the result and the result itself are essentially involved in justice, and if the procedure is wrong, so is likely to be the result. The one is no less important than the other. Neither the President nor any of his military subordinates should be permitted to prescribe those rules of procedure, including the rules of evidence, which govern the results in criminal prosecutions. To prescribe such procedure is not an executive function.

But the revision of 1916 expressly made it so. Three new substantial articles affecting military justice were introduced by the "revision of 1916," all of which were reactionary, still further subjecting judicial functions to military command. One of these (38th) authorized the President to prescribe the procedure, including modes of proof, in cases before courts-martial. This was enacted at the request of the military authorities and in deference to the military view which insists that military command should control the trial. It must also be remembered that while the statute in terms confers the power upon the President, as an administrative fact it is not the President who will exercise it, but the Chief of Staff and the Judge Advocate General of the Army,-ultra-military men. The President, then, has the power by express statutory delegation to prescribe modes of proof. Formerly, by the unwritten law military, courts-martial recognized, so far as they recognized any law, that they should apply the rules of evidence applied in the Federal criminal courts, that is to say, the common-law rules as modified by Congress. But the "revision of 1916" changed that and conferred the power to prescribe rules of evidence upon the President. This has operated as a license to courts-martial to follow their own views, or inquisitiveness, as to what evidence ought to be produced.

While the military mind is intolerant of protective principles and of rules governing a trial, it is particularly so of the rules of evidence. The professional officers of our Army in great numbers believed with Napier, "that the business of courts-martial is not to discuss law, but to get at the truth by all the means in its power." Our officers, both in formal and in informal statements in support of our system of military justice, habitually drop into the very language used by that distinguished British officer who took the British Bar to task for its interference in court-martial matters and boldly declared: "We soldiers want to get at the fact (no matter how) for the sake of disicpline. There is no better witness against a man than himself.”

*

That statement is axiomatic among our professional officers. They will hear of no qualifications nor can they see any evil consequences of the generous application of what is so good. It is the basis of military third-degree methods. It helps the investigating officer to impose his authority upon the unfortunate suspected man and enmesh him in words and conduct having no origin in fairness and truth. It is an excuse for the reception of incompetent confessions or for holding them to be without prejudicial effect. It justifies in a thousand instances that situation in which an accused, with incompetent counsel or none, is induced to take the stand and make out, for the benefit of the record at least, a case which the Government has failed to prove. Such an abandonment of established rules of evidence has resulted in many unjust convictions. Upon the observance of such rules depends the vital question of guilt or innocence. We may well be reminded of Warren's classic criticism of British courtsmartial nearly four-score years ago, when he said:

"Our rules of evidence are the safeguards of every subject of your Majesty, high and low, rich and poor, young and old. Were those rules to be disregarded, anybody might at any time be found guilty of anything. They ought, of all others, to be kept inviolate; for the whole administration of justice depends upon them. They are, as I have this day seen observed in full force and eloquence, the result of the collective wisdom of generations and founded on the principles of immutable equity."11

This being a system that neither applies nor is governed by law, neither does it require or contemplate the services of judge or lawyer in the administration of its functions. Courts-martial consist of military men, untrained, of course, in the law, whose profession is not such as to render acute their sense of judicial appreciation. Nobody sits with them or over them with judicial competency to govern them in matters of law. As was once said by the distinguished British Barrister previously quoted:

"It would, indeed, seem as reasonable to expect fifteen military men capable of conducting satisfactorily a purely judicial investigation, dependent in every stage on the application of principles of a jurisprudence with which they cannot have become acquainted, as to imagine the fifteen judges of your Majesty's superior and common law courts at Westminster competent to form a correct opinion concerning critical military operations dependent upon pure strategical science."'12

Errors committed in such trials by men ignorant of law are not likely to be untenable and idle according to any system of law. There are likely to be, indeed there are, ridiculous blunders with tragic consequences. Proceedings of courts-martial, consisting of unlettered men and having with them no judge of the law, and applying a code that, though penal, is not specific either in defining the offense, penalty or procedure, must be expected to be and frequently they are wrong from beginning to end; wrong in fact; wrong in law; wrong in the conduct of the inquiry; wrong in the findings; wrong in the "advice" given by compliant and impotent law officers, who recommend the approval of such proceedings; wrong in the ignorant confirmation of such proceedings; wrong in everything. And yet, of such errors there can be no review.

The system may well be said to be a lawless system. It is not a code of law; it is not buttressed in law, nor are correct legal conclusions its objective. The agencies applying it are not courts, their proceedings are not regulated by law, their findings are not judgments of law. The system sets up and recognizes no legal standard, and has no place for lawyers or judges. Whatever is done with the final approval of the convening commander is done finally beyond all earthly power of correction. Setting up no legal standard-in a word, being a system of autocracy and not law-it contemplates no errors of law and makes no provision for the detection and correction of errors that under the system can never occur. Accordingly, questions of law as such cannot arise, and such questions as do arise are presented to the commander for determination, not as questions of law to which he is bound to defer, but as questions to be disposed of by him finally and in accordance with his ideas, first, as to the requirements of discipline, and, secondly, of right and justice. The system, which is one of absolute penal government of every person subjected to military law, and which results in an almost incomprehensible number of courts-martial annually, is perhaps most remarkable in that it has no place for a lawyer. The military commander governs the trial from the moment of accusation to the execution of the sentence, and such law adviser as he may have on his staff is without authority or right to interpose. At every point the decision of the commanding general is final and beyond all review. All the legal reviewing machinery designed to "advise" commanders in the administration of justice is extra-legal, is not established by law, much of it was created by me during this War, may be abolished at the pleasure of superior military authority (and doubtless will be). Such legal machinery does not function independently, but in strict subordination to the power of military command. The Judge

Advocate General of the Army, his office, his department and all his functions, are by express provision of the statute made subject to the power of the Chief of Staff and the "decisions" of the Judge Advocate General and of every officer in his department, even upon questions of pure law, are subject to military "supervision."

Lawyers are used extra-legally and in an "advisory" way. Without recognized place or authority they, like other military men, are subjected to the power of military command. If there is a difference between the law-adviser and the military commander with absolute authority over the subject and, incidentally, over the personal fortunes of the "adviser" we know who will do the agreeing. Since, by statute, the Chief of Staff" supervises" the Judge Advocate General of the Army upon matters of pure military law, the "supervision” over the junior judge advocates may be expected to become imposition. So, we have recently heard some of these military minions of the law, after brief service under professional soldiers, say and affect to believe that notwithstanding the system is crude and the rules of evidence are ignored and counsel is obviously inadequate and "in a considerable percentage of the cases the decision is not sustained by the facts" of record, still they were convinced that no substantial injustice has been done. This shows, among other things, how the military relationship deflects legal judgment; how it imposes itself upon professional appreciations and obscures those first principles which are normally regarded as tenets of the faith and foundation stones of the temple of justice. The last man in the world to be expected to prefer his impression of moral guilt to guilt duly adjudged, his own judgment to the judgment of a court of law, his personal views upon insufficient investigation for the institutional results of established legal procedure-should be the lawyer. What does it mean for lawyers sitting in a judicial capacity to say: We find the soldier has not been well tried; we find that the rules of evidence were not observed in his case; we find that he had not the substantial right of assistance of counsel; we even find that the decision was not sustained by the facts of record; and yet, we are morally convinced that the accused was guilty, so let him be punished? That leads to something worse than injustice to the accused; it leads to anarchy. A lawyer breaks faith with his profession and his American citizenship when in the name of justice he can tolerate, much less advocate, such a state of things. Let us again pertinently quote Warren:

"It concerns the safety of all citizens alike, chat legal guilt should be made the sole condition for legal punishment; for legal guilt, rightly understood, is nothing but moral guilt ascertained according

to those rules of trial which experience and reflection have combined to suggest, for the security of the state at large. * They (these fundamental principles of our law) have, nevertheless, been lost sight of and with a disastrous effect by the military authorities conducting, and supporting the validity of, the proceedings about to be brought before your Majesty."13

The system has resulted in many erroneous and unjust convictions. Surely we need not point out to a lawyer that clemency, even when generously granted, is a poor remedy in the case of a soldier who should not have been convicted at all.

The vices of the present system, which Congress ought at once to remedy, may, as I see them, be summed up as follows:

I. Our code of military justice (technically known as the Articles of War, section 1342 of the Revised Statutes as amended), is thoroughly archaic. It is substantially the British code of 1774, which code was itself of much more ancient origin.

2.

The so-called "revision of 1916" was but a verbal revision and made not a single systemic or substantial change; and such changes as were introduced but accentuated the vicious principles underlying the code.

3. Our code is a vicious anachronism among our institutions, coming to us, as it did, out of an age and a system of government which we properly regard as intolerable.

4. It came to us through a witless adoption, and our interests in, appreciation of, and attitude toward, military matters have never been such as to lead to any systemic change or to any thorough congressional investigation or other fair inquiry into its utter inadaptability to our conditions.

5. The hearings held upon the "revision of 1916" demonstrate that committees of Congress are not well advised when, in investigating military matters of this kind that involve the citizen and his rights when he becomes a soldier, they confine their sources of information to the War Department and the Army.

7. This code is in equally sharp conflict with any adequate military policy that is consistent with the principles of this Government. In my judgment an army of citizens can never again be subjected to such an ill-suited system.

8. The code is not a code of law; it is not buttressed in law, nor are legal conclusions its objective. The courts applying it are only agencies of military command, not courts of law; their proceedings are not regulated by law; their findings are not judgments of law.

Supra, note 11, at p. 9.