ESTABLISHMENT OF MILITARY JUSTICE.

74 9
The thought originated with Gen . Bethel, for, in writing to Gen . Crowder
under (late of June 24, 1918 (Exhibit 143), he concluded by saying that ther e
have been a number of death sentences recently requiring the confirmation o f
the President, but the cases were not of such a character as to justify execu-
tion of the sentences . In view of the time necessary for the cases to reac h
Washington they were sent back to the courts for imposition of a milder sen-
tence. Gen . Bethel stated that it would greatly facilitate the administratio n
of military justice if Gen . Pershing had the power to commute death sentences ,
not only in the cases where he had authority to confirm them, but also i n
these cases requiring the President's confirmation. He stated that Army com-
manders in the field should also have the power to commute sentences of dis-
missal of an officer .
A copy of Gen. Pershing's cablegram was referred to the Acting Judge
Advocate General for recommendation. Gen . Ansell expressed his views in a
memorandum bearing date of September 5, 1918 . (Exhibit 144 .) He opposed
the suggested amendment, saying in part :
" Commutation, unlike mitigation and remission, * * * is a pardo n
granted on a condition subsequent that the offender undergo a punishmen t
of a different nature . As such it involves the pardoning power of the Presi-
dent . * * *
" The existing statute * * * deals with fundamental principles which
do-not undergo modification with every 'change of circumstances ; it is old, ha s
stood for a long time substantially unmodified, and in the absence of a con-
siderable showing of its lack of wisdom or workability, is entitled to defer-
ence * s * . It should be changed * * * only upon thorough considera-
tion and in the light of conclusive ex p erience. * * *
" The power here sought concededly involves and derogates from the powe r
established solely in the Commander in Chief of the Army . * * * Inasmuc h
as I have no evidence of the necessity or advisability for such enlercemert o f
the powers of the commanding general in question, and because of the othe r
considerations heretofore mentioned, for the present at least, I can not concu r
in the request. "
He concluded the memorandum by remarking that, while he was not calle d
upon to draft the proposed legislation, he would take the liberty to sugges t
the advisability of so drafting it as to confer this power upon such command-
ing generals in the field as the President might himself designate .
The papers were forwarded to the War College, and, on September 19, 1918 ,
Col . E. G . Davis, formerly Chief of the Military Justice Division of the Judg e
Advocate General's Office, prepared a memorandum (Exhibit 145) expressin g
the opinion that no sound reason could be advanced why an officer, who was
given power to approve and carry into effect a sentence of death or of dis-
missal of an officer without reference to higher authority, should not be give n
the lesser power of commuting such a sentence to one of lower degree, nor
could any good reason be assigned why he should not directly exercise the
power of mitigation without reference to the President, in those cases requirin g
the tatter's confirmation . He invited attention to the fact that the fiftiet h
article of war speaks of the "mitigation" or "remission " of sentences o f
death or of dismissal of officers, and stated that, as mitigation of either o f
these sentences requires a substitution of some other and distinct form o f
punishment, mitigation in such a case becomes the " commutation " discussed
in the opinion of the Judge Advocate General.
The Director, War Plans Division, in forwarding the papers to the Wa r
Department (Exhibit 145), stated that his division was of the opinion that th e
recommendations of Gen . Pershing could be complied with and that the incon-
sistencies in the present Articles of War could be remedied by amending th e
fiftieth article. The proposed change in the fiftieth article of war was se t
forth, the substance of which is found in the following paragraph of th e
amended article :
" When empowered by the President so to do, the commanding general o f
the Army in the field or the commanding general of the territorial departmen t
or division, may mitigate or remit, and order executed as mitigated or re-
mitted, any sentence which, under these articles, requires the confirmation o f
the President, before the same may be executed . "
It will be observed that, although Gen . Ansell opposed the amendment, hi s
suggestion that, if it were to become a law, the conferring of power not onl y
upon the commanding general American Expeditionary Forces, but upon suc h
other generals in the field as the President might himself designate, wa s
adopted . On September 19 (Exhibit 146) the Acting Secretary of War trans-