730. ESTABLISHMENT OF MILITARY JUSTICE .

sions, and perform such other duties as have been performed heretofore by the
Judge Advocate General of the Army. "
In a brief under date of November 10, 1917, Gen . Ansell presented his inter-
pretation of the statute. (Exhibit 32 .) This was concurred in by a numbe r
of officers serving in the department . The Secretary of War asked for the
opinion of Gen . Crowder, which was submitted by a memorandum under date o f
November 27, 1917 (Exhibit 34), and disagreed with Gen. Ansell's interpreta-
tion. That the disagreement was as to the meaning of the law and not as t o
ultimate purpose is shown by a part of Gen . Crowder ' s concluding paragraph ,
wherein he said : " I shall continue my study of the general subject to se e
whether this power of appellate review can not be found in the President him -
self, as the constitutional Commander in Chief ." The Secretary of War, on
November 27, decided definitely and finally the question of law involved, i n
the following language : (Exhibit 34, p. 11 . )
"As a convenient mode of doing justice exists in the instant cases, I shall be
glad to act in reliance upon a usual power and leave this larger question fo r
future consideration, informed by the further study which the Judge Advocate
General is giving it . Ordinarily, however, the extraction of new and large grant s
of power by reinterpreting familiar statutes with settled practical constructio n
is unwise. A frank appeal to the legislature for added power is wiser . "
The cases referred to by the Secretary of War were those, among them tha t
of the Texas mutineers, wherein Gen . Ansell attempted, without consulting th e
Secretary of War or the Judge Advocate General, to exercise a power which ,
according to his interpretation of the statute, was vested in the Judge Advocat e
General . (Exhibit 5, p . 6 . )
Notwithstanding the final decision of the Secretary of War, Gen . Ansell, on
December 11, in effect asked for a rehearing and submitted, through Gen .
Crowder, a supplemental _brief (Exhibit 38) further supporting his views an d
combating those of the Judge Advocate General . That Gen. Crowder gave Gen .
Ansell's arguments full and sympathetic consideration is shown by a letter
from him to the Secretary of War bearing date of December 17, 1917 (Exhibi t
37), wherewith he transmitted Gen . Ansell's reply brief. That statement indi-
cates very clearly what the issue was in Gen . Crowder's mind. His complete
agreement with Gen . Ansell's ultimate purpose is further expressed in the sam e
letter in the following language :
"He (Gen . An sell) first addresses himself to the evils he would remedy . He
shows that a great number of officers not familiar with court-martial procedure
have lately been included in the Army, and that there is danger of grave erro r
in court-martial proceedings . * * * He argues very strongly from these
premises that it is both expedient and necessary that some corrective powe r
should exist which shall have the effect of nullifying even the approved finding s
and sentences of courts-martial, and that we should not be remitted solely to
the pardoning power to correct fatal errors of courts-martial and reviewin g
authorities . He cites again the mutiny case (from Texas) * * * and says ,
` I think justly that there are other cases * * * which demand the exercis e
of such corrective power,' and down to this point I follow him with substantia l
concurrence, without, however, being able to concur with him that this power
has been granted to the Judge Advocate General by section 1199, Revise d
Statutes. "
Pending this argument, and under date of December 6, 1917, Gen . Crowder
submitted to the Secretary of War a memorandum (Exhibit 35), which was th e
first result of the " further study " that he had given the matter . The stud y
had actually been made by Col . E . G. Davis and Col . A. E . Clark, Col . Davi s
at that time being in charge of the military justice division of the Judge Ad-
vocate General ' s Office . Both of these officers had concurred in the origina l
brief of Gen . Ansell with respect to section 1199 . Revised Statutes . In this mem-
orandum, the result of their further consideration of the subject, they dealt no t
only with sectio n. 1199, Revised Statues, but, going to another statute, the thirty -
eighth article of war, concluded that, by virtue of the power given the Presiden t
to " prescribe the procedure " of courts-martial, rules could be formulated t o
effect the result which all agreed was desirable, i . e ., an adequate revisory su-
pervision .of courts-martial . The views thus expressed were adopted by th e
War Department and resulted, first, in the issuance of General Orders, No . 169,
December 29, 1917 (Exhibit 53) and, later, General Orders, No . 7, January 17,
1918 (Exhibit 54) . The former was the forerunner of the latter, and both wil l
be considered later in this report .