ing before the people, and one which may well receive the attentive consideration of the thoughtful men of the United States.

When you are dealing with the law of courts-martial you are dealing with the fundamental law by which an army is governed and according to which it functions. The mere fact that the average soldier knows very little of it or has very little reason to know anything of it is of no importance. The fact that it is there, that it works, and that the rules cannot be broken without incurring punishment is of supreme importance. We had an illustration here in Boston, a few weeks ago, of what it means to have the ordinary routine administration of discipline suspended for a few days. We found that to relax the grip meant chaos. The orderly life of the community is not based upon everybody being punished for crime, but is based upon the fact that the man who commits a crime is reasonably sure to be punished. In like manner, discipline in the army does not depend upon every soldier and officer receiving a morning dose of punishment. It does depend upon the universal consciousness that the soldier cannot break the rules of military law without getting punished.

What, then, is this military law or the law of court-martial? It is the code for the government of the army, provided by a statute of the United States, and the court-martial is the military court by which that law is administered. Theoretically, soldiers are still subject to the civil law as long as they remain in the country where the civil law continues to function; but practically, soldiers are very seldom tried by civil law. If they commit any crime whatever, from having dirty boots on parade to murder, they are tried by the military courts. The importance of our subject, therefore, is obvious when you realize that upon the outbreak of this war we had upwards of four million men who were practically relieved from any responsibility to the civil law and who were, thereafter, as long as they continued in the service, subject to the penalties of the military courts alone. This United States statute is made up of one hundred and twenty-one sections composing the so-called Articles of War, which, in substance, provide for the different kinds of military courts and their procedure, the different kinds of military offenses, for courts of inquiry, and the different methods of making military investigations.

The first thing which is forcibly brought to the attention of a lawyer like myself, who begins to practice under the provisions of the military law, is that the point of view of the army toward every offense mentioned in the Articles of War is very, very different from that of the civilian.

To a district attorney or a judge sitting in the Criminal Session, many considerations appeal in judging a prisoner which have no weight whatsoever with the army; and on the other hand, many offenses which are very serious from the civilian point of view, are absolutely negligible in the army. For example, to steal five dollars or a shirt in Boston is a venial offense and to be punished, if at all, by probation or a small fine. In the army it is a serious matter, and is punishable by six months or more imprisonment at hard labor. The reason why is because, in the army, no man can lock anything up. All of his property is wide open to

the thief. The existence of a thief in a company is absolutely destructive of mutual confidence and esteem. Each soldier becomes suspicious of his fellow, and discipline and morale may be badly affected unless petty thievery is stopped, and stopped at once. In France, where, upon short rations, the men in the early days were perfectly crazy for anything sweet, it became necessary to visit with the heaviest penalties the soldiers who broke into the beehives of the French and stole honey - not because it was an awful thing in itself to steal a pound of honey, but because it would be impossible to live with the French if they became suspicious, sullen, resentful, and hated the American troops because their property was stolen.

We punished any man contracting venereal disease with the utmost severity, not at all because of our lofty moral principle or because we were endeavoring from the point of view of ethics to inaugurate a reign of strict continence; but because a soldier who contracts venereal disease cannot fight, and anything that interferes with the fighting ability of the army must be punished.

In other words, the army code from start to finish has one aim and one only, and that is, the fabrication and continuation of a first-class, efficient fighting force. Anything that interferes with that is a matter which is contrary to military discipline and must be severely punished. Anything that does not interfere with that is of very minor importance.

The rules of evidence in a military court are substantially the same as those in a civil court. The one feature which strikes a civilian as the most curious in the administration of military justice is the so-called "judge advocate," an office which has no counterpart in civil law. He is what his name literally indicates something of a judge and something of an advocate. Offenses before the general court-martial are prosecuted in the name of the United States by this judge advocate who is appointed in the general order which appoints the court. His duty

is to prosecute and at the same time advise the accused, and also advise a court upon questions of law.

It occurred to me that it might be interesting to give you a few incidents from my own life as division judge advocate, for you can, in that way, form an idea of just how the law business of a division in the field is conducted.

The division judge advocate has charge over the trials by courtmartial of 27,000 men. Divisions differ a great deal in the number of trials which this involves. It is, of course, very desirable to eliminate formal trials as much as possible, and the service highly approves and inculcates every possible method of dealing with soldiers by admonition, extra fatigue duty, restriction to certain limits, and every other possible method of discipline outside of a formal trial. Ordinarily it is a mark of a raw command and green officers to have a large number of trials by court-martial. It indicates that the men are restive under the restraints of military discipline and that the officers do not know how to control them without the intervention of the courts. In my division, which was for six weeks at Camp Mills, L. I., before going abroad, I think we had as many trials by court-martial in those six weeks as we had in the next

six months.

If, however, an officer thinks that a soldier should be tried by court-martial, if the offense is one punishable by not more than three months' confinement or loss of pay, he prefers a charge against him and the case is thereupon tried by summary court, which is a single officer appointed by the colonel of the regiment; if the offense is one punishable by not more than six months' imprisonment or loss of pay, by a special court appointed by the colonel of the regiment and consisting of from two to five officers; and by a general court martial, consisting of from five to thirteen officers and appointed by the division commander, if the case is more serious.

This, again, from a civilian point of view, is a curious thing. The difference in the courts is determined by the difference in the severity of punishment rather than by any intrinsic difference in the offense itself. Cases which may involve the death penalty can only be tried by the general court-martial, but other cases can be referred to one court or the other according as the offense seems more or less serious.

You may have heard a great deal of criticism of some of the courtsmartial because of the power which has always existed in the commanding general of sending back a case for reconsideration, in case he did not agree with the conclusion of the court-martial. Much criticism has been directed towards this peculiar feature of military law, and many writers have said that a sensitive court would in all cases regard this as a direction to change their findings and that it would and did, in effect, substitute the opinion of the division commander for the opinion of the court. That has not been my experience. In most of the cases which I have known to be returned by the commanding general to the court for reconsideration the court has promptly met, reconsidered, and adhered to their former findings.

In this case of which I speak, a man had deserted while in the frontline trench, obtained civilian clothes, taken off his uniform, and started for Switzerland. He could speak French, and almost reached the border when he was picked up by some French gendarmes. They took him for a spy and were going to shoot him. He thought he would have a better chance with the Americans than with the French, and so told them who he was and where he came from, and he was returned to us for trial as a deserter. The court was a regimental court of the 166th Infantry, composed of four captains and three lieutenants. They heard the evidence and sentenced the man to be shot. I reviewed the record with care, found no technical fault in the proceedings, regarded the sentence as warranted, and so reported to the commanding general. He approved the proceeding, finding some mitigating circumstances, and forwarded the record to headquarters. It was there reviewed by General Pershing and his law officer and returned to the court with the order that the court be reconvened and with the recommendation that upon such reconvening the sentence be modified and reduced.

I wish especially to point out to those fearful souls who have said that a court-martial composed of American officers were liable to be intimidated by superior military authority, that here was a court of which the highest officer was a captain and it had received an order from

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General Pershing himself to reconvene and reconsider its sentence with a view of reducing it. The court met out in the front-line trench, and in three or four days I received its proceedings, written out upon a rough sheet of paper with a fountain pen, which were all the facilities that their location afforded them. The indorsement read about as follows: "Pursuant to the order of the Commander-in-Chief of the American Army, the court has met and reconsidered its findings. It respectfully adheres to its former decision."

This case went on up to Chaumont; from there to Washington; and the sentence was finally reduced by the President to twenty years' imprisonment.

It is, of course, contrary to all civilian practice that a man once acquitted by vote of the court should be finally convicted and punished. The committee, therefore, upon which I sat in Washington at the end of the war, to examine the procedure of courts-martial, voted to recommend that this feature of the administration of the law of court-martial be abolished and this recommendation was adopted by the War Department in a general order. It is, therefore, not now within the province of any reviewing authority to return a record for reconsideration after the accused has been found not guilty.

Ordinarily, the division judge advocate does not try any cases. Acting as he does in the position of legal adviser to the commanding general, who is the reviewing authority, he could not try cases himself which he would subsequently be called on to review. In all the time in which I was division judge advocate I tried but one case. That particular case has some interesting features and you would perhaps like to hear about it. When we took over the sector at Baccarat we were under instant pressure from the French corps commander to take prisoners so that the German organizations opposite us might be identified with certainty. Raiding parties were immediately sent out every night, but the Boches were wary, and it was very difficult to take any prisoners. Some criticism became implied because our raiding parties returned without any prisoners. Finally it reached a point where my friend, Major McKenna, who was killed at the crossing of the Ourcq, sent out a party one night with instructions to Lieutenant Cassidy, who had charge of the patrol, that he was to go over into the German front trench and bring back some prisoners, and McKenna added, "If you don't come back with some prisoners, I don't want to see you again."

He took the party out at about ten o'clock, passed out through our own chicane into No Man's Land, and, going a substantial part of the way towards the German wire, lay down in the grass to await developments. As the party lay there, they saw two or three Germans on the sky-line of the little hill at the base of which they lay, and also saw some white objects on the grass near them. The lieutenant thought that this was a trap to lead them within a field of machine gun fire and that the white objects were markers. He, therefore, did nothing; waited for half an hour and led his party home. Upon this being reported to headquarters, the brigade commander put an indorsement on it to the effect that apparently this was a square disobedience of orders and that the

lieutenant had lost one of the best chances we had had to take prisoners, and recommended that he be tried for disobedience and cowardice. This indorsement was approved by the division commander, and the papers referred to me with instructions to try the man at once. I immediately went out to the front line, interviewed the major who had drafted the original instructions, the captain of the company who had talked with the offender before he left his company post of command, and two or three of the men who were on the detail. The facts appeared to be practically undisputed, and I, therefore, drew the charges and drafted the order convening the general court-martial for that night.

The man needed a good lawyer to defend him, and I suggested that the best man I knew was the captain of an infantry company in an Ohio regiment. His colonel said that he was then on the march, taking his company into the front trench, but that I could, of course, have him. So I went out myself in a car, got hold of him on the march, and brought him to brigade headquarters. When the court met, about 10.30 that night, it appeared that the man who had been appointed judge advocate, the Major McKenna of whom I spoke a couple of minutes ago, had never got the order, he being out in No Man's Land. It was impossible to get anybody else at that time, and so, after communicating with division headquarters, I was told to go ahead and try the case myself.

The recollection of that trial will be with me as long as I live. Brigade headquarters was within easy shelling distance of the Germans it was a half-shot-up house in the remains of the village, with a cellar underneath banked up with sand bags and rocks, into which the colonel and his staff could get if the shelling became too heavy. Blankets were hung over the remains of the windows and the doors to keep out the light. Candles here and there furnished what light there was. A board of high ranking officers, headed by the colonel of the 149th Field Artillery, made up the court, which sat around the rough French wooden table. Outside, the noise of our own guns shooting at the Germans, and the explosion of the German shells punctuated the questions and answers, and caused much of the testimony to be repeated once or twice before it was audible. The young lieutenant, a man of perhaps twenty-two or three, sat steadfastly looking at the court. His counsel, the Ohio captain of infantry, was almost overcome with fatigue, having been up all night for the two nights previous, but although covered with mud from head to foot, and having on his full field equipment just as I pulled him off the road - he was as cool and collected and tried his case as well as if he had been trying in the civil courts at home.

So we went on from ten to eleven, to twelve, to one, to two, until the colonel said that it was impossible to finish that night, or rather that morning, and we had better finish the next night. There was practically no dispute about the facts as outlined above. I offered those facts in evidence, offered the order that the young lieutenant should reconnoiter the German trench and take prisoners, and rested my case. His counsel then said that he would like to put before the court upon any charge which involved the cowardice of his client, the story of what happened the next night, so that the court could determine for themselves whether the man who was accused was really a coward.