of the President who is deemed to have succeeded to the royal prerogative over the Army, to be disciplined by him and his commanders under his ordinances and at his will; under the other, which is the theory established by our Constitution, Congress raises and supports armies and has exclusive power to prescribe the rules for its discipline. The one theory clearly represents the monarchical, reactionary and personal government view. The other is a necessary part of that larger theory of government which insists that the source of all political power is to be found in the people. Under the one theory the Army is an army of a king or emperor or other person in authority; under the other, it is an institution ordained by the people to do their service. Under the one, the obligation of the soldier is to a military chieftain; under the other, it is to the State. Under the one, the military relationship is governed by considerations of personal loyalty and fealty to those in authority; under the other, the military obligation is created and governed by law established by the people themselves. Under the one, the army has a detached, independent and self-sufficient existence, finding within itself the source of its own government; under the other it is but an institution of government, drawing, like all other institutions, its power from a common superior source upon which it depends for its government and its very existence. Under the one the common soldier was but a serf, a personal retainer of the King or a subordinate commander; under the other he is a citizen serving the State in the highest capacity of citizenship.

At the time of our separation the respective spheres of power of Parliament and the King over the Army had not been definitely determined but, on the other hand, were a matter of grave and serious contention; indeed, they have not been accurately determined to this day. A matter of such tremendous import to their liberties as the question of the control of the Army, the Fathers of our government were not disposed to leave unsettled. As they did not intend that our people should inherit this controversy regarding the control of the armed forces, so did they not intend that the Chief Executive of this nation should inherit those military powers which in the mother-land had been deemed inherent in the Crown. They resolved to make it certain that the Army of the United States should be called into being only by Congress, should continue to exist only at the will of Congress, and should be governed and disciplined only in accordance with laws enacted by Congress. Thus it was that the Constitution, while conferring upon the Chief Executive the power of command, expressly and exclusively conferred upon Congress the power

to raise and support armies and the power to make rules for their regulation and government.

It is under this latter power that Congress enacts the code for the discipline of the Army, commonly known as the Articles of War. The power to make rules for the regulation and government of the armed forces is the power to prescribe the relations, the authority and the rules of conduct of all the members of those forces, both officers and men, and to provide sufficient sanction. Congress has power to prescribe the substantive offense, the penalty, the tribunal and the methods of procedure and trial; all subject, of course, to the limitations upon the legislative power found elsewhere in the Constitution. Accordingly, it has the sole power to enact a penal code for the complete government of all who occupy the military status. A soldier is also a citizen, and his conduct must conform not only to the requirements of the general law of the land, but to the special requirements of the military establishment. The military code is comprehensive of both relations. It adopts the substantive provisions of general social law, and it denounces and penalizes the myriad manifestations of misconduct prejudicial to the military relation.

Such exercise of penal power should be in keeping with the progress of enlightened government and not inconsistent with those fundamental principles of law which have ever characterized AngloAmerican jurisprudence. The Military Code, being a penal code, should be applied to none except upon probable cause. It should be specific with respect to the definition of the offense denounced and the penalty provided. It should particularize with respect to matters of procedure, that the trial may be full, fair and impartial. It should require recognition of those rules of evidence which our jurisprudence has evolved as necessary to elicit those facts upon which the ultimate conclusion of guilt or innocence may with safety and justice rest. With the utmost care it should guarantee those safeguards and that protection for an accused whose life and liberty are placed in jeopardy, which are the pride of our enlightened civilization. None of these things does our code do, and none of these things can it do, until it changes its base from the ancient English theory and comes to conform to American principles of government.

That our Articles of War, organically and largely in detail, are the ancient British Articles of 1774, can be shown historically as well as by mere comparison. John Adams, responsible for their hasty adoption by our Constitutional Congress to meet an emergency, said of them:

"There was extant, I observed, one system of Articles of War which had carried two empires to the head of mankind, the Roman

and the British; for the British Articles of War are only a literal translation of the Roman. It would be vain for us to seek in our own invention or the records of warlike nations for a more complete system of military discipline. I was, therefore, for reporting the British Articles of War totidem verbis ** * * So undigested were the notions of liberty prevalent among the majority of the members most zealously attached to the public cause that to this day I scarcely know how it was possible that these articles should have been carried. They were adopted, however, and they have governed our armies with little variation to this day."

He himself, appreciating their rigorous character, did not expect them to pass without substantial liberalization, for he further said: "It was a very difficult and unpopular subject and I observed to Jefferson that whatever alteration we should report with the least energy in it or the least tendency to a necessary discipline of the Army would be opposed with as much vehemence as if it were the most perfect; we might as well, therefore, report the complete system at once and let it meet its fate. Something perhaps might be gained." Writing in 1805, he expressed surprise that it was possible that these articles could have been carried at all.

Military authorities and military text-writers, with the love that such have for ancient legal lineage, have always proclaimed their pride in this ancient code. For instance Winthrop says of it:

"Our military code, however, stands alone among our public statutes in its retaining many provisions and forms of expression dating back from 200 to 500 years, and while it is desirable that some of the articles should be made more precise or extended in scope and the code itself simplified by dropping a few articles and consolidating others, any radical remodeling which would divest this time-honored body of law of its historical associations and interests would be greatly to be deprecated."

And the present Judge Advocate General, in proposing the socalled "revision of 1916," frankly said to the Committees: "It is to be doubted if the Congress has ever been called upon to amend legislation which is as archaic in its character as our present Articles of War." That "revision of 1916" made not a single systemic change in the Roman-English system adopted by the Continental Congress and in 1806 by the Congress under the Constitution. It did nothing but assemble, classify and render more convenient old

History of the Adoption of the British Articles of 1774 by the Continental Congress: Life and Works of John Adams, vol. 3, pages 68-82.

Supra, note 3.

'Winthrop's Law, Standard Military Text, vol. I, p. 15.

articles, dressed them up in rather more modern language, wrote into them what hitherto had been legally implied into them by construction, and made not one single fundamental change. That this is so will become apparent upon a comparison of the 1916 revision with the law as it previously existed. Nobody, neither the Judge Advocate General, the Secretary of War nor either of the Committees of Congress, has ever regarded the project of 1916 as a real substantial revision; indeed, the Judge Advocate General took occasion to deny that it was anything but a restatement of existing law for the sake of convenience and clarity. Verification of this statement may be made by reference to the printed hearings before the Committee on Military Affairs upon the 1916 revision. There it will be found that the author of the project, discussing it before the Committees, article by article, was quick to assure them upon every occasion and with respect to every article having to do with military justice that the project made and contemplated no substantial change in the articles, which he truthfully traced to the British Articles of 1774 and beyond. He himself said, at page 43 of these hearings:

"If Congress enacts this revision, the service will not be cognizant of any material changes in the procedure, and courts will function much the same as heretofore. * * The revision will make certain a great deal that has been read into the existing code by construction."

That was the truth. Nobody has experienced any change for the better.

Out of these opposite basic theories on the one side that Military Justice is to be controlled by the power of Military Command and on the other that it is to be regulated by established principles of Law-arise the two antagonistic views as to the character of courts-martial. One is that a court-martial is an executive agency belonging to and under the control of the military commander; is, indeed, but a board of officers appointed to investigate the accusation and report their findings to the commander for his approval. Under such a theory, a commander exercises an almost unrestrained and unlimited discretion in determining (1) who shall be tried, (2) the prima facie sufficiency of the proof, (3) the sufficiency of the charge, (4) the composition of the court, (5) all questions of law arising during the progress of the trial, (6) the correctness of the proceedings and their sufficiency in law and in fact. Under such a theory all these questions are controlled not by law but by the power of Military Command. Thus it is said by Winthrop, the greatest departmental authority upon Military Law:

"Courts-martial are not courts, but are, in fact, simply instrumentalities of the executive power provided by Congress for the President as Commander-in-Chief to aid him in properly commanding the army and enforcing discipline therein, and utilized under his orders or those of his authorized military representative; they are, indeed, creatures of orders and except in so far as an independent discretion may be given them by statute, they are as much subject to the orders of a competent superior as is any military body of persons." This, of course, is in accordance with the old monarchical view. At the time of our separation, the King was not only the commander of the Army, he was the legislator of the Army; he prescribed the Articles of War, the offenses and the penalty; he prescribed both the substantive and procedural law; he prescribed the courts-martial, their jurisdiction and their procedure. He controlled the entire system of discipline and the methods of its administration. The Army was his, the officers were his officers and from him drew their authority. Courts-martial were courts-martial of the King and of the officers representing him and his power of command. The courtsmartial, therefore, applied his law, his penalties, followed his procedure and were subject to his command. Under such a scheme, a court-martial was but an agency of command, nowhere in touch with the popular will, nowhere governed by laws established by the people to regulate the relation between sovereign and subject. It was not a judicial body. Its functions were not judicial functions. It was but an agency of the power of military command to do its bidding.

Basically, such is our system today. It does not contemplate that a court-martial shall be a court doing justice according to established principles of jurisprudence and independently of all personal power. Quite the contrary. It regards the court-martial simply as the right hand of the commanding officer to aid him in the maintenance of discipline. It is his agent; he controls it. It is answerable not to the law but to him. The court martial is not a court at all; it is but an agency of military command governed and controlled by the will of the commander. Under such a system an officer, of course, belongs to a caste. Any officer can prefer charges against a man and at his will can succeed in getting him tried. The statute requires no preliminary investigation to determine whether or not the accused should be tried, and such investigation as is required by regulation is also controlled by the military commander, and is neither thorough nor effective. From then on everything is

"Winthrop's Military Law, vol. I, p. 54.