756 ESTABLISHMENT OF MILITARY JUSTICE.

the extremes to which the practice of returning records for reconsideration ha s

been exercised.
Criticism has been offered that the department or division judge advocate.
After recommending reference of the charges for trial, acts as trial judge advo -
cate, then returns to headquarters and prepares a review of the case for the
'department or division commander. Such instances were exceedingly rare i n
the cases under examination. This practice, however, has existed . Case No.
114492, wherein the assistant division judge advocate acted as trial judge advo-
cate, resulted in acquittal . A review of the proceedings was prepared for th e
division commander by this same judge advocate, wherein it was set forth that
four of the specifications had been proven . Thereupon the case was referre d
back by the division commander to this self-same officer by indorsement, i n
practically- the same language as was found in the review, with instruction s
that the court be reconvened for reconsideration of its findings . The court met
in revision and adhered to its former finding of acquittal . A subsequent review
was prepared by the assistant judge advocate (trial judge advocate), wherein
lie stated in writing to the division commander that the court erred in adher-
ing to its original findings, and recommended that they be disapproved, whic h
was done by the division commander in his final action on the case, adding tha t
the findings of not guilty by the court on the four specifications in question
were without justification.
An other instance in this same division, ca g e No . 114485, resulted in precisely
the same action, except that in this case the division commander approve d
the acquittal after the court had declined upon proceedings in revision to chang e
its original findings.
This unfortunate procedure can not be defended from any standpoint and cer-
tainly calls for the adoption of such measures as will prevent the possibility o f
Its recurrence.
It failure to do justice has occurred in the trial court or at the hands of th e
reviewing authority, it is to appellate power that the soldier must look fo r
relief. What relief on appeal exists and the measure in which it has bee n
exercised has been especially examined into . Appellate review is especially
necessary during war, when great latitude is granted courts-martial and review-
ing authorities in adjudging sentences by the automatic removal of the presi -
dential order prescribing limits of punishment, and, moreover, the power o f
execution of death sentences, lodged by law exclusively in the President in tim e
of peace, is extended by the 48th Article of War, in cases of persons convicted
in time of war of murder, rape, mutiny, desertion, or as spies, to the command-
ing general of the army in the field or to the commanding general of the ter-
ritorial department or division, who confirms the sentence . Prior to the war,
All cases of general court-martial arriving in the office of the Judge Advocat e
General (and every case must be sent there after final action by the reviewin g
authority) were carefully examined by a commissioned Judge Advocate fo r
jurisdictional errors (which, if existent at the time, caused the proceeding s
to be set aside by the Secretary of 'War), and for errors of law prejudicial to
the rights of the accused . In cases of excessive sentences, or where mitigatin g
circumstances appeared within or outside of the record, recommendation wa s
made to the Secretary of War to exercise the power of clemency by remission o r
mitigation of the sentences . After entrance into the war, and coincident wit h
the raising of the large Army under the draft, errors of law in court-martia l
proceedings became more frequent, due to the causes heretofore related . Th e
correction of the same by the pardoning or clemency power naturally fails t o
remove the stigma of conviction . The Acting Judge Advocate General, believing
that the power to reverse, modify, and set aside was lodged in the Judge Advo-
cate General by section 1199, Revised Statutes, exercised the same on Octobe r
30, 1917, by setting aside the judgments of conviction and the sentences in th e
cases of the Texas mutineers, on account of prejudicial error due to failure t o
substantiate, by the evidence of record, the offenses charged . This same power
was exercised in several other contemporaneous cases . The Secretary of War
held that such power was not to be found in section 1199, Revised Statutes, and
prepared a draft of amendment to that section providing for the lodging of the
power in the President, and sent a copy of the drafted amendment, on January
19, 1918, to the Military Affairs Committees of the House and Senate, recom-
mending its enactment into legislation . It failed to become a law.
An examination of numerous memoranda bearing the signature of the Actin g
Judge Advocate General reveals the fact that recommendation was frequentl y
made to the War Department to declare findings null and void . In case No.