THE ARMY LAWYER: A HISTORY OF THE JUDGE ADVOCATE GENERAL'S CORPS, 1775-1 975 Contents Chapter Page I. A First Look. At. The Corps ........................ 1 11. In The Beginning ................................. 7 11.1. Two Wars and An Intervening 30 Years' Peace ------ 33 IV. The Civil War and. Beginning of The Classical Period of American Mllitary Law ......................... 49 v. The Classical Period of Military Law ---------------- 71 VI. New Responsibilities and New Articles of War -------- 10 1 VII. The First World War, Further Revision of the Articles and 20 Years of Peace .......................... 1 13 VIII. The Second World War and Two New Military Codes- 159 IX. Korea and The Uniform Code of Military Justice ---- 203 X. The Community Role of The Judge Advocate Is Ex- panded ........................................ 233 Bibliographic. Note ................................ 263 Bibliography ...................................... 267 A First Look At The Corps This history celebrates the Bicentennial of The Judge Advocate General's Corps of the United States Army. The Corps joins its military colleagues to mark the second century of progress in honorable service to the nation. Army lawyers have been with their commanders in that national service since the beginning: the institution of the Army lawyer is but 23 days younger than the Army of 1775 commanded by George Washington. War has been said to be an impersonal thing, and in many respects it is. However, armies are necessarily composed of human beings-who perform or influence the performance of great actions; who bring new growth and new challenge; and who have the capacity to leave a legacy of honor, hard work and respect for the law. This is a history of such people. It is also a history of the law they practiced, where their deeds and dreams depend for explanation upon the conditions and circumstances of their time. Many kinds of lawyers appear here in text and vignette. Wells Blodgett, Blanton Winship and Eugene Caffey were combat soldiers of great distinction, wearers of the Medal of Honor, Distinguished Service Cross or Silver Star. Important, too, were the citizen-soldiers, members of the Reserve and National Guard, who left home and work to answer wartime needs. There are "great" names, too: John Marshall and Felix Frankfurter of the Supreme Court; great law teachers such as John Chipman Gray, Edmund Morgan, and John Henry Wigmore; and such promi- nent public servants as Henry L. Stimson, Enoch Crowder, Patrick J. Hurley, and Leon Jaworski. The unique American military legal system both produced and is the product of great lawyers. After John Adams, who introduced the first major criminal code in the Continental Congress in 1776, the efforts of men like William Winthrop, Samuel Ansell and Kenneth Hodson produced proud chapters in the history of the law. Finally, there is a general category of men who participated in key events in our history, who responded to the various challenges and tests. Judge Advocates from the beginning to modern days had the burden of conducting trials in the glare of publicity: the prosecutions of Benedict Arnold, the assassins of President Lincoln, and the Nazi saboteurs come to mind. Other "events" presented opportunities for bold, forthright public service by the Judge Advocates General of the time: the Army's growth from 200,000 to eight million men in World War 11; implementa- tion of a revolutionary Uniform Code of Military Justice during combat in Korea; and the most recent problems of a new kind of war and new forms of public reaction. Judge Advocates General George Davis, Myron Cramer, Ernest Brannon and Charles Decker, among others, were the architects of adjustment to the demands of modern war and politics as "the world's largest law firm" fmished the last decades of its second century. The bicentennial celebration of these Judge Advocates and their contributions is a sufficient reason for this history. However, there are other reasons, consideration of which enriches the Corps history and increases its usefulness. First among these is the way in which the history of these officers signals the development of ideas and legal concepts. Although war may be impersonal, the development and application of law clearly are not. Law, especially the criminal law, applies to people and is adopted by them for the protection of basic values. The values to be protected and the nature of legal effects on people touch fundamental human concerns; for that reason, they also provoke the finest in human thought and action. Those in the society empowered to enact and administer laws are compelled to enviable action by the serious- ness of the trust with which they are charged. Much of that trust in the Army society has reposed in its lawyers over the years, and a study of those men will disclose the ideas and ideals by which they lived. The growth of ideas and ideals has two facets, both suggested by this history of the Army's lawyers. One facet is the content of law, the "rules" for behavior, such as those contained in the Army sponsorship of what became the first modern rules for land warfare among civilized states, the Lieber Code. The other facet of law is the way it is applied to people, how its coercive power is controlled and balanced between society's needs and personal liberty. The military legal system is a part of the total national legal system in the United States, flowing as it does from the constitutional powers of Congress to "provide for the common Defense," "to raise and support Armies" and "to make Rules for the Government and Regulations of the land and naval Forces." However, its origins antedate the Constitution by more than a decade. The first military code was enacted in June 1775, and when William Tudor was made the first Judge Advocate of the Army in July, he was the first legal officer appointed under authority of the nascent United States, 14 years before there was an Attorney General or Chief Justice. However, there is more meaning to this than recitation of a L6first."The commanders of the colonial Army did not promulgate their own criminal code; they went to their legislature which enacted for them a set of legal controls on the behavior of the forces. This followed an English practice in effect since 1689 when Parliament wrested from the Crown the power to legislate for the Army and enacted the first Mutiny Act. The colonists, by continuing the practice, established both the principle of civilian control over the military forces and the relationship between civilian and military law. Civilian control and civilian standards have been part of the Army story for two centuries. We will show how these-influences /,' worked on the Army's law and especially on t+ Army kiwy&sl The story for each is one of growth according tohegular patterns. To speak of "the Army's law" is to use a phrase which is not sufficiently descriptive. Army lawyers practice under two distinct legal orders: an external order consisting of those parts of international and domestic law which affect the organization, mission and operations of the Army, and an internal order which flows from the Army's authority and need to regulate itself. All kinds of law are included within these orders and the growth in their numbers is among the first in drama and effect; within most of the kinds of law there has also been growth, particularly in the judicialization of the criminal justice system. There have been significant increases in the size of the Corps and changes in its composition as women and minority officers have taken their places and the citizen-soldier has repeatedly answered the "call to colors." All have shared the same sense of professionalism as soldiers and attorneys which is the modern JA's heritage. They have also contributed to the growing role in community service played by the Army's lawyers, both in extended assistance to individuals within the Army and in ever-increasing participation in the establishment of community policies and standards. There is yet another story in this pattern of service; the skills developed by Army lawyers are in great demand, and we shall read of their service on behalf of other government agencies and the ease with which they fit into civilian law teaching or other public service upon separation or retirement from the Army. The law for early courts-martial, as did colonial law, generally reflected the intense moral tone of the period; but also as did the civilian courts, Army courts suffered from a shortage of men learned in the law. William Tudor was a lawyer, but John Marshall did not go to law school until some years after his experience as a judge advocate at Valley Forge. The effort, however, was always toward current professional standards in the military courts and this history of the Corps will show how the military practice kept pace with and sometimes exceeded civilian standards. This was particularly true of those areas of the criminal law which protect individual rights. For example, the soldier had a right to free legal counsel and to be advised concerning his right to remain silent many years before his civilian contemporaries in state courts. The account of the progress of the Corps in the military community and its influence on community standards also mirrors developments "outside." Early criminal prosecutors in the United States acted as today, in the name of "the people," and were usually their elected representatives. The Army held no such elections, but we will see how often its prosecutors and principal legal leaders came from the community at large. This pattern has largely disappeared because the demands of specialization in both military science and law preclude mastery of two complex disciplines by more than a few exceptional persons.