The crowder Anseu Dispute: The Emergence of General Samuel T. Ansell

• Author: By Major Terry W Brown
• Pages: 01

This article studies the emfliet between Maior General

Enoch H. CvozLder and Brigadier General Samuel T. Ansell, its historical baekoround, deQelopment, and im, pact mi the Articles of War of 1920 and the Uniform Code of Military Justice. Emphasis is placed on the com eepts of General Ansell and their influence upon subsequent military iu7isprudeme.

I. ISTRODUCTION

In September 1917, at Fort Bliss, Texas, a group of twelve or fifteen enlisted members of Batten "A" of the Eighteenth Field Artillev, who had been placed under arrest for a minor infraction of the Articles of War of 1916,' refused to attend drill formation after being ordered to do so by a commissioned officer. Their refusal wm based on an existing Army regulation which prohibited persons in arrest from attending drill. The offenders were charged with mutiny'and trikd by general court-martial. All were found guilty and sentenced to be dishonorably discharged from the senice and to be eonfined for various terms of imprisonment ranging from ten to twenty-five years.' The cases were reviewed, approved and ordered executed by the appointing authority and the records of trial forwarded to the Office of the Judge Advocate General of the Amy for review and recording in accordance with section 1199 of the Revised Statutes of 1878 6 which prpvided that:

'Thin sdicie wai adapted fmm P thesis presented to The Judge Advocate Genersi'a School, U.S. Amy. Chariatteaville, Virginia, while the avthor w ~ g

B member of the Fourteenth Career Course. The opinions and comiuBiOM presented are those of the author and do not necesmriiy represent the viewua of The Jvdze Advocate General's Schml or any other ~ovem- . -

mental agency.

"JAGC, U.S. Amy; Jude Advocate, Headquarters, 1st Infantry Division, Viet N m ; LL.B., 1958, Tulane University Law Sehml; member of the bars of the State of Lauiamnn, the U.S. Court of Military Appeaia, and the U.S. Supreme Court.

'See Act Of 29 Aug. 1916, ch. 418. 5 3, 89 Stat. 66C-TO [hereafter r+f-d ta as 1916 A. W.].

'See 1916 A. W. art. 68. 'Court-Mnrtml Nos. 108, 663.

' Aet of 23 June 1874, eh. 418, 5 2. 18 Stat. 244.

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the asid Judge-.4dvaeite-General shall receive, reviae, and have recorded the pmceedmga of all co~rts-martial, courts of inquiry and military commmioni, and shall perfam such other duties 8s have been heretofore performed by the JudpAdvocate.Genera1 of the Army . . . ,

Brigadier General Samuel T. Ansell was the senior officer in the Office of the Judge Advocate General. (Major General Enoch H.

Crowder, The Judge Advoeate General, had been detailed as

Provost Marshal General to administer the Selective Senice General Ansell, with other officers, recognized the illegality of the proceedings due to the provisions of the pertinent regulation which precluded the accused soldiers from attending drill formation and drafted an opinion directing that the findings be set aside relying on the provisions of section 1199. General Cromder. upon being notified of this action, contended that the Judge Advocate General did not, under section 1199, have the authority to direct the setting aside of findings after execution of the sentence had been ordered.*

The foregoing occurrences set the stage far what is referred to,in rather understated terms, as the "Crowder-Ansell Dispute." The controversy ultimately caused a nationwide clamor for revision of the Articles af War; bitter newspaper denunciation of military justice as administered during World War 1: vitriolic speeches in both Houses of Congress; two independent investigations of the military justice system of the United States Army: 10B statement by the President of the American Bar Association that the military code was archaic and that it was a "code

CROWDER-ANSELL DISPUTE

unworthy of the name of law or justice;"" lengthy congressional hearings; and Rnally revision of the Articles of War Is and the Manual for Courtr-Martial.]'

In the opinion of the author, however, the most important outgrowth of the entire controversy has been largely overlooked by both military legal scholars and their civilian counterparts, with the exception of the late Professor Edmund M. Morgan,'n and is virtually unknown to the average judge advocate. This outgrowth was the drafting by Brigadier General Samuel T. Ansell of the Chamberlain Bill,'b which, if passed by the Congress, would have given the United States A m y a code of military law in 1920 which would have closely paralleled, and in some respects exceeded, the Uniform Code of Military Justice."

It is the purpose of this article to explore the background of the Crowder-Ansell Dispute and the developments to which it gave rise with the emphasis placed on certain sections of the proposed legislation drafted by General Ansell.

11. THE DEVELOPMENT OF THE DISPUTE

During the summer of 1917 a large group of Negro soldiers stationed in Texas caused a riot in Houston and were ultimately tried by general court-martial far murder, mutiny and riot. During the course of the trial, as each day's record was transcribed, it was given to the appointing authority for his study. Upon completion of the proceedings which resulted in findings of guilty

See Statement by George T. Pas, President, American Bar Aaioeiation, in Xew York World, 19 Jan, 1919.

See Hearing8 on S. 59% on Tliola by Courta.Mortio1 Betme the Senate Committee on Militom Affoira. 66th Coni.. 3d Sese. (1919) [hereafter referred to 8s Heoringa on S. ssmo]; Hewing# an S. 61: Heolings onCourts-lmtinl Boiow a Spedal Subcommtttee m the House Committee onMzlitary Affowa, 66th Cong., 2d SBBB. (1920).

"Artieiei of War, 1920, ch. 2, ill Stat. I87 [hereafter referred to as 1920 A. W.I.

i4 Manusi to? Courts-Martial, United States Army, 1921 [hereafter re.ferred to BS 1921 MCM].

',See Morgan, The Background 01 the Uniiom Code of Militow Jxstios, 6 VAN". L. REV. 169 (19531, reprinted in 28 MIL. L. b.17 (1965).

"Introdwed in the Senate BS Senate Bill 64 and in the House of RepBentativeo 84 House Resolution 367 [hereafter referred ta BB the Chamberlain Bill or S. 641. and pmted in Hea*inga on S. 64, at 5-23. See Fanner B Welb Command Control-07 Mditory Justice?, 24 N.Y.U. L. Q. RGY. 265. 264 (1949): Comment, Cadifred Military Injurtica, $5 CORNU L. 9. 151 (1949) ; Jahnaan, UnlawJwl Cmmond lnP.%ence: A pusation a i Bala~e, 19JAGJ. 81, 88 (1965).

Hereafter cited BP UCMJ art. -.

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and sentences to death, the appointing authority considered his daily reading of the transcript as constituting his review and ordered the sentences executed. (Article 48 of the 1916 Articles of War generally required Presidential confirmation of a death sentence. but provided that in time of war a sentence to death for murder, rape, mut:ny, desertion. or espionage could be ordered executed by the commander of the field army or the commander of a territorial department. In this case the appointing authority was the departmental commander.) The men were executed within two days after the completion of the trial. The Office of the Judge Advocate General did not receive the records of trial for action pursuant to section 1199 until approximately 10 Xovember 1917, about four months after the sentences had been executed.'E

On 10 November 1917, after the abcrtive attempt to set aside the verdicts in the "Texas Xutiny Cases" and perhaps stimulated by the receipt of the "Houston Riot Cases" (although a reading of General Ameli's memorandum would seem ta indicate more preparation time than one or two days), General Amell addressed a memorandum to Secretary of IVar Ne~ton D. Baker. He asserted his opinion that a proper interpretation of seztion 1199 required the conclu~ion that the words "revise" and "review." asused in that statute. vested in the Judge Advocate General authority to modify or set aside the findings and sentence in a court-martial case after approval by the appointing authority if there existed a lack of jurisdiction or serious prejudicial error

His contentions were based on the grounds that: (1) "Revise," as defined in both legal and standard dictionaries, meant to reexamine far correction, to alter or amend; and that "review" was a swmp far "revise" and imported the same meaning.

(2) The Federal bankruptcy law was worded similarly ta setion 1199 and the ward revie had been judicially interpretedPo to cannote the "power to reexamine all matters of law imported by or into the proceedings of the case."

(3) The Office af the Judge Advoeate General had, for a

"Jf~oning~on S. 64, at 33-38, 8685: Anwll, Injutice in Military T~al- Why Judioisl Pvotecfiun /B Imperotivt, 62 THE FORUM

447, 448-50 (1819)."Aot of 1 July 1398, eh. 541, 5 24, 30 Stat. 553 (amended and now found

1" 11 U.S.C. s 47 11964))m See In *e Cole, 163 Fed. 180 (1st Cir. 1806).

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CROWDER.ANSELL DISPUTE

short period of time following the Civil War, through the Bureau of Military Justice, exercised the power to take appellate action on court-martial findings and sentences pursuant to B statute brought forward without substantial change as seotion 1199.*' (4) For reasom not expressed or know, during the early 1880's. the Judge Advocate General. General Lieber, sdopted the viewpoint that was now supwrted by General Crowder that the power of revision did not exist in swtion 1199.

(6) The Anny was rapidly expanding and the influx of untrained officers and increase in the number of eourts-martial which would logically follow such expansion required that the ' statute be properly construed to empower the Judge Advocate General to correct the increased number of improper court-martial prweedings which could reasonably be expected to occur.

(6) The Judge Advocate General of the British Anny exercised a similar power.=

On 21 November 1917, General Crowder countered with a memorandum to Secretary of War Baker opposing the views set forth by General Ansell on the basis that: (1) There was no valid analogy between section 1199 and the bankruptcy...