. ESTABLISHMENT OF MILITARY JUSTICE .

80 9
the execution of sentences which could be made of force and effect under
the statutes as they then existed, and thus prevent the occurrence of any cas e
which could not be fully corrected by the processes of the Judge Advocat e
General ' s office and the War Department, as they had theretofore been exer-
cised . About that time the Houston riot cases came to a climax by the exe-
cution of 13 negroes at Fort Sam Houston, Tex . That case had been trie d
and the sentences executed before the War Department knew what the resul t
of the trial had been. That came as something of a shock to the War Depart-
ment and it was anticipated that a great deal of objection over the countr y
would arise as to what seemed like a summary execution of the court-martia l
judgment without opportunity to appeal to the pardoning power for clemency .
I think that apprehension was not well founded, because the objection whic h
we expected did not develop, but it emphasized the necessity of having som e
power of review in the Judge Advocate General's office before a sentence o f
that character could be executed, and we prepared and asked the War Depart-
ment to issue a general order, which was paragraph 1 of General Order 169 ,
War Department, 1918 . This was an order which stayed the execution of an y
sentence of death until reviewed in the Judge Advocate General's office . Tha t
was simply a first step in the formulation of what later was issued as a
General Order No . 7, 1918.
Col. Clarke and I continued our study of that matter, and when we finall y
had our data together and agreed upon what could be legally done, I drafte d
what was later General Order No . 7, 1918, and submitted it to Gen. Crowde r
for approval, together with a memorandum which was prepared for his sig-
nature, to be submitted to the 'Secretary of War, in support of this correctiv e
action. General Order No . 7 was designed to stay the execution of any sentenc e
of death, dismissal of an officer, or dishonorable discharge of an enlisted ma n
until such sentence could be reviewed as to its legality in the office of th e
Judge Advocate General. Gen . Ansell objected to the issuance of this order .
He objected to it on the ground that it was not based on correct legal theory ;
that it was an interference with the power of reviewing authorities conferred
by statute, and he filed a memorandum with Gen . Crowder in which he opposed
the issuance of this order and stated that in any event it did not go far enoug h
and would not work out the corrective action that was necessary .
Gen . Ansell still contended that his view of section 1199 was correct. He
never accepted the other theory and never willingly supported it . When the
action of the Federal court of New York was called to his attention, it wa s
found that the exact point had been there passed upon . That was the case,
General, of Sergt. Mason, who tried to shoot Guiteau, the assassion of President
Garfield . If I remember correctly, the Judge Advocate General decided in tha t
case that there was something irregular with the proceeding and had recom-
mended that they be set aside. The Secretary of War, or the President, ha d
refused to follow his recommendation, and the contention in the civil court wa s
that the ruling of the Judge Advocate General was decisive of the matter ; tha t
his views must be followed, or, in other words, that he had the power to se t
aside and reverse this finding . The Federal court practically laughed the con-
tention out of court, did not treat it seriously, and decided that no such powe r
had been conferred upon the Judge Advocate General .
Gen . Ansell disposed of this case by saying that it was only the decisio n
of an inferior Federal court and not the decision of the highest court of las t
resort, and he still contended for his own view. After General Order No . 7
had been made effective, Gen . Ansell was in a position intermediate between
myself and Gen . Crowder. I disposed of, over my own signature, all case s
which were reviewed by the office and found correct . I sent up for his signa-
ture all cases in which we found corrective action necessary . or in which we
found some error of law which had to be passed upon by the opinion of th e
head of the office. All of these cases which went forward for action passe d
through Gen . Ansell's hands . Gen . Ansell has stated in his testimony before
the Senate Military Committee that he was relieved of all responsibility fo r
the administration of military justice from some time in November, 1917, unti l
about the middle of July, 1918 . I quote these words from his testimony :
" From some time in November until the time I left for France, about th e
middle of April, I had nothing to do with the administration of military justice.
I mean that the proceedings did not come over my desk ." That statement is
not correct. During all the time that he was in the office as Acting Judge
Advocate General, every-