734 ESTABLISHMENT OF MILITARY JUSTICE .

" I have just been advised of the step taken by the Secretary of War to pre -
vent the execution of possibly illegal death sentences in the United States b y
requiring that the . record be transmitted to the department and reviewed here ,
that its legal correctness may be assured before execution . While a step i n
the right direction, I deem it my duty to say that in my judgment it fall s
short of the requisite degree of remediality in that it is not applicable generally ,
nor to all those sentences which, unless stayed, mean separation of a man fro m
the Army and placing him, in a practical sense, beyond the reach of remedia l
power subsequently exerted .
" I see no reason why the same measure of relief should not be extended t o
dismissal and dishonorable discharge ; nor do I see any reason why it shoul d
not be made applicable to our forces in France, as well as elsewhere ; all of
which could, with the establishment of a proper and practical system of re -
vision, he done without evil administrative result and to the advantage of law
and justice. "
He then proceeds to recommend the establishment in France of an office rep -
resenting the functions of the Judge Advocate General . This recommendation
was adopted, as will later appear, without dissent from anybody .
Referring to his recommendation for a broader reviewing activity than wa s
contemplated by General Orders, No . 169, which, as he indicated, suspende d
only the execution of death sentences in the United States, Gen . Ansell sai d
in conclusion :
" I think no doubt need be entertained but that such a system of revision woul d
be workable, nor is it of more than academic interest to determine whethe r
the power finds its source in the inherent relation of the President to th e
Army, or in the statutory donation of article 38, or in the revisory function s
of the Judge Advocate General established by section 1199, Revised Statutes ,
though, of course, I think it is clearly established in the latter section, and no t
otherwise . "
In the meantime, Col . E . G . Davis, Chief of the Military Justice Division ,
by direction of Gen. Crowder, undertook the working out of a system of revi-
sion, the necessity for which was first suggested, as indicated above, by Gen .
Ansell. In a memorandum dated January 10, 1918 (Exhibit 41), prepare d
by Col . Davis, but submitted to the Secretary of War over the signature o f
Gen. Crowder, certain changes were recommended in rules of procedure . I t
announced finally that, 'under the thirty-eighth article of war, giving th e
President power to regulate court-martial proceedings, a system had bee n
devised which would adequately provide for all war-time necessities . It wil l
be remembered that, in his memorandum of January 9, 1918 (Exhibit 40) ,
relative to General Orders, No . 169, Gen . Ansell referred to the latter as a
step in the right direction, but criticized it because it did not extend t o
dismissal and dishonorable discharge . In Gen . Crowder's memorandum o f
January 10, 1918, the same thought was set forth as follows :
" The question to be disposed of resolves itself, therefore, into one of pre -
venting sentences of death, dismissal of an officer, or dishonorable discharge
of an enlisted man from being executed before final review of the recor d
of trial in this office . The scope of the difficulty is very much reduced by
the fact that, in the great majority of cases where dishonorable discharge i s
suspended by the reviewing authority until the soldier is released from con-
finement, under the authority contained in the fifty-second article of war.
Where this is done the correction of injustice is easy of accomplishment . "
In a memorandum to Gen . Crowder dated January 12 (Exhibit 42), Gen .
Ansell, referring to the former's memorandum of January 10, expresses hi s
disapproval and concludes as follows :
" I have given this question of revisory power the best that is in me . I see
no reasons whatever to hesitate at the adoption of that definition of revisor y
jurisdiction which is found in my recent memorandum and which was adopted
after most thorough consideration upon the part of many of the assistants of
the office as what the law requires . I do not believe as much as I should like
to believe that what Maj . Davis proposes is sound in law and will prove safe i n
practice . I regret, therefore, that I can not advise you to adopt it . "
Gen . Ansell's principal opposition to the plan was that it was " faulty a s
a definition of revisory power in that it regards that power as having applica-
tion only to that very limited number of cases in which sentences should b e
stayed," and that it was " fundamentally wrong as a matter of law ." Hi s
principal contention was that, in reviewing the cases for errors of law, th e
Judge Advocate General was denied the power of correction . He was of the