DEPARTMENT OF THE ARMY PAMPHLET 27-1 00-26 MILITARY LAW REVIEW Articles TVIILITARY SEARCHES AND SEIZURES-THE DEVELOPMENT OF -4 CONSTITL~TIONALRIGHT Cnptnin lames F. Webb, Jr. THE USE OF FORCE TO PROTECT GOVERNMENT PROPERTY Captain Darrell L. Peck Comment INCOMPATIBLE BLOOD TRANSFUSIONS HEADQUARTERS, DEPARTMENT OF THE ARMY OCTOBER 1964 AGO 646OB PREFACE The Military Law Review is designed to provide a medium for those interested in the field of military law to share the product of their experience and research with their fellow lawyers. Arti- cles should be of direct concern and import in this area of scholar- ship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate Department of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or the Department of the Army. Articles, comments, and notes should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Ad- vocate General’s School, US. Army, Charlottesville, Virginia. Footnotes should be triple spaced, set out on pages separate from the text and follow the manner of citation in the Harvard Blue Book. This Review may be cited as 26 MIL. L. REV. (number of page) (1964) (DA Pam 27-100-26,1 October 1964). For sale by the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Price : $.75 (single copy). Subscription price : $2.50 a year ; $.75 additional for foreign mailing. AGO 64SOB i JOHN FITZGERALD LEE Judge Advocate of the Army 1849-1862 When the office of Judge Advocate of the Army was abolished in 1802, judge advocates continued to serve in the field. However, the year 1821 witnessed the total demise of the Judge Advocate Gen- eral’s Corps, and from that year until 1849, officers of the line, not necessarily attorneys, were detailed to serve as trial judge advocates for courts-martial, there being no permanent legal officers in the Army. Available records indicate that the administration of military justice and the responsibilities for advising the general staff on legal matters were not uniformly exercised. At times the Secretary of War or the General-in-Chief of the Army requested opinions on various matters from the Attorney General of the United States, At other times (and with particular reference to the review of court-martial records) The Adjutant General of the Army per- formed the functions of a Judge Advocate General. In addition, the Generals-in-Chief of the Army, during this period, all were either lawyers or officers familiar with the law and no doubt served to some extent as their own legal advisors. It appears that Jacob Brown, General-in-Chief from 1815 to 1828, probably studied law, Alexander Macomb, General-in-Chief from 1828 to 1841, published treatises on martial law and court-martial proce- dure. Winfield Scott, General-in-Chief from 1841 to 1861, was a member of the Virginia Bar. Henry W. Halleck, General-in-Chief from 1862 to 1864, was a member of the California Bar, and an author of legal treatises. The administration of military justice and the execution of the duties of a Judge Advocate General of the Army were to some extent regularized by Colonel Rodger Jones of Virginia, who served as Adjutant General of the Army from 1825 to 1852. Colonel Jones himself was convicted by general court-martial as a result of a disagreement with Major General Alexander Macomb, General-in-Chief of the Army on The Adjutant General’s legal authority to issue orders. During this disagreement Colonel Jones was alleged to have said to the General, “I defy you, sir; I defy you.” Colonel Jones was sentenced, however, only to a reprimand and continued to serve as The Adjutant General. AGO 5460B iii Starting in 1844, Colonel Jones detailed an officer of the line to his office as Acting Judge Advocate of the Army to assist him in the performance of the legal functions that he had assumed. The first Acting Judge Advocate of the Army, who served until 1846, was First Lieutenant Samuel Chase Ridgely of the 4th Artillery, from Maryland. During the year 1847 the Acting Judge Advocate was Captain Leslie Chase of the 2d Artillery, from New York. Finally, in 1848, Captain John Fitzgerald Lee of the Ordnance Department was appointed Acting Judge Ad- vocate of the Army. Captain Lee, a native of Virginia, and grandson of Richard Henry Lee, President of the Continental Congress, was apparently not an attorney. Nevertheless, it may be assumed that he had knowledge of military law as it was the understanding of that day that every officer had a responsibility to educate himself in military law and therefore every officer of the Army was, to some extent, a member of the military bar. Captain Lee had graduated from the United States Military Academy in 1830 and had served as Lieutenant of Artillery until 1837. In 1837 he was breveted a captain “for Gallantry and Good Conduct in the War against the Florida Indians.’’ In 1838 he transferred to Ordnance and was regularly promoted to captain in 1847. In 1849 Congress reestablished the statutory office of Judge Advocate of the Army with the brevet rank and pay of a Major of Cavalry, and Captain Lee was appointed to that office. The records of his office indicate that the military justice func- tions performed at general headquarters were not substantial. During this period, and until 1862, no other judge advocates were authorized either at headquarters or in the field. The first record of court-martial reviewed by Major Lee was in 1850, some 12 months after his appointment. There is no record of correspond- ence on other matters pertaining to military law until 1854. Major Lee rendered, among others, two interesting opinions during his tenure. He rendered an opinion (presumably his, al- though issued in the name of the General-in-Chief of the Army) that the sentence of a court-martial that required four privates for one year to wear iron bands around their necks each with seven prongs seven inches long was cruel and unusual punishment and therefore illegal. The other opinion rendered by Major Lee may well have been responsible for his ultimate resignation from the Army. Major iv AGO 6460B General Henry W. Halleck was assigned to command the Depart- ment of Missouri. General Halleck, who as a young officer had become familiar with Winfield Scott's device of trial by military commission, proceeded to try by commission persons suspected of aiding the Confederacy, on the ground that the local civil courts were ineffective. Major Lee rendered an opinion that such com- missions were without authority and illegal. General Halleck became General-in-Chief of the Army in July 1862. In the same month, Congress recreated the office of Judge Advocate General of the Army with the rank and pay of a Colonel of Cavalry, and in so doing abolished the office which Major Lee had held. Major Lee apparently was not recommended by General Halleck for ap- pointment to the new office (which might have been explained by the fact that he was not an attorney and the ultimate ap- pointee was). Nevertheless, rather than being reassigned to Ordnance or continued as a subordinate judge advocate (which offices were also reestablished by the same act of Congress) he resigned from the Army in September of 1862. Major Lee retired to a Maryland farm in Prince George County. Thereafter he served as a member of the Maryland State Constitutional Convention in 1867 and as a state senator for the term 1868-69. He died in 1884 at the age of 71. AGO 6460B Pam 27-100-26 PAMPHLET HEADQUARTERS 1 DEPARTMENT OF THE ARMY No. 27-100-26 j WASHINGTON, D.C., 1 October 1964 MILITARY LAW REVIEW Page Articles: Military Searches and Seizures-The Development of a Constitutional Right Captain James F. Webb, Jr____________________ 1 The Use of Force to Protect Government Property Captain Darrell L. Peck 81 Comment: Incompatible Blood Transfusions (Colonel Maurice Levin) ...................... 129 Book Review: The Death Penalty in America-Edited by Hugo Adam Bedau (Captain Glenn M. Woodworth) ________________ 139 1964 Annual Index: Table of Leading Articles and Comments-Authors--- 145 Table of Leading Articles and Comments-Titles----- 146 Book Reviews-----__-_______-_-_--_--___--------- 146 Subject Word Index ______________________________ 146 TAG0 6460B-Aug vii MILITARY SEARCHES AND SEIZURES-THE DEVELOPMENT OF A CONSTITUTIONAL RIGHT* BY CAPTAIN JOHN F. WEBB,JR.** I. INTRODUCTION The basis for the Federal rule, as it applies to both military and civilian trials, prohibiting unreasonable search and seizure is found in the Fourth Amendment to the United States Constitu- tion which provides : The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup- ported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The notion that persons and property ought to be protected against unreasonable search and seizure had its judicial birth in English law in 1765 when Lord Camden gave his opinion in Entick v. Carrington 1 invalidating the use of a general warrant issued by no less than one of the King’s ministers to make an exploratory search of a man’s private books and papers for the purpose of seizing evidence to be used against him in a criminal trial.