the Judge-Advocate-General. Until Jan. 1918 the reviewing authority acted upon a court-martial sentence and immediately ordered it executed if he did not disapprove. By an order of Jan. 1918, it was directed that no sentence of death or of dismissal or dishonourable discharge not suspended should be executed until the record of proceedings of trial had been reviewed in the office of the Judge-Advocate-General or branch thereof. The effect of the new article was to establish by statute much the same procedure. The Board of Review consists of three or more officers in the office of the Judge-Advocate-General, and functions in the following classes of cases:
(a) Where the President is reviewing or confirming authority or where he has ordered a rehearing.
(b) Where the sentence does not require approval or confirmation by the President, but involves death, dismissal or dishonourable discharge not suspended or confinement in a penitentiary, unless, in the two latter cases, the sentence is based upon a plea of guilty.
All other general court-martial records are examined in the office of the Judge-Advocate-General, but do not go to the Board of Review unless found insufficient to sustain the findings and sentence, in which case the record is submitted to the Board of Review. When the Board of Review has acted, its action is submitted to the Judge- Advocate-General. If there be an agreement between the Board of Review and the Judge-Advocate-General that the record is legally sufficient to sustain the finding and sentence, the reviewing authority is notified and the sentence is forthwith ordered executed. If the Board and Judge-Advocate-General agree that the record is not sufficient to sustain the findings and sentence, the findings and sentence are by virtue of the statute vacated and the record is returned to the reviewing authority for action. In case of disagreement between the Board and the Judge-Advocate-General the record is transmitted to the Secretary of War for the action of the President. Provision is made for more than one Board of Review if business requires such and for a branch of the Judge-Advocate-General's office like that in France during the World War.
Another change is that in connexion with a rehearing of a case. In civil cases the defendant asks for a new trial and by so doing is held to waive the guarantee against repeated jeopardy. In the military procedure, if on examining a record prejudicial error be found, the accused receives the benefit of it without any affirmative act on his part. In other words, the appellate review is automatic. This requires some modification of the rules governing new trials before civil courts. It is accordingly provided that no proceedings shall be deemed a trial until final action by the reviewing authority. When a hearing is ordered it is to take place before a different court and the accused cannot be tried for any offence of which he was found not guilty by the first court nor can a sentence be imposed more severe than that of the first court.
Still another change is that which forbids the reviewing authority to return a record to the court for increase of sentence or reconsideration of an acquittal. And the reviewing authority is not permitted to act upon a record until he has referred it to his staff judge-advocate, but this reference was always customary. The prohibition against cruel and unusual punishments is broadened but not more than the customs of the service have already broadened it, and the President is authorized to set limits of punishment in time of war as well as in time of peace. Under the new code voting upon challenges and upon the findings and sentence is by secret ballot, and the majority ballot has been extended, so that a death sentence must be by unanimous vote, sentence to imprisonment for life or over 10 years by three-quarters vote and all other sentences by two-thirds vote.
The new Articles provide for the appointment on each general court martial of a law member who rules upon all objections to the admissibility of evidence and, subject to reversal by the court, rules upon other interlocutory matters except challenges. The investigation of charges before reference to trial has been extended and possibly to an extent such that resulting delay prevents the swift application of justice. But a large part of this procedure is ruled by regulation and can be changed when found necessary.
Another innovation is that of peremptory challenges, each side being allowed one, except that the law member can be challenged only for cause; and the trial judge-advocate's right to challenge is made statutory. The punishing power of summary courts is reduced. The disciplinary powers of commanding officers to handle offences without trial has been somewhat extended, but yet not made so extensive as to lead to unreasonable punishment; and this power extends to junior officers in time of war, but no officer shall be subjected to a forfeiture of more than one-half of one month's pay.
Under the new code there are three classes of courts—the summary, special and the general courts. The summary court consists of one officer and the limits of punishment are one month's confinement and forfeiture of two-thirds of one month's pay. The limits of punishment of the special court are six months' confinement and forfeiture of two-thirds pay per month for six months. The limits of punishment of the general court are established by the President under his statutory power to fix such limits both in peace and war, except where a specific punishment is made mandatory by the particular Article of War, as is dismissal under the 95th Article.
In 1913 the Judge-Advocate-General succeeded in establishing a method of restoration to the colours of men who had been sentenced to severe punishment. This included the establishment of detention barracks, called disciplinary barracks, and a system of drills and vocational training, by means of which a prisoner could earn honourable restoration to his position lost by his offence and sentence therefor. This procedure received Congressional sanction in 1915 and the process of reclaiming those who have made mistakes is probably the most enlightened of all systems of modern penology.
In addition to the foregoing there are many laws, statutory in character as well as those of regulation and custom, that could be properly classed as military laws. But as these are mostly administrative in character they are not usually considered in a brief account of military laws. Among these are the Acts of Congress reorganizing the army, establishing the pay of grades, and making appropriations for the expenses of the army. These laws are administrative and only incidentally affect military justice, but the organization of the army in 1921 was to a great extent covered by the Act of June 4 1920, the Act which also contains the Articles of War already described. (H. A. W.*)
VIII. History
Conditions in 1908.—The year 1908 seemed one of the quietest in recent American history. The seven previous years of President Roosevelt's administration had been marked by lively contests between the executive and Congress, and also between the Government as a whole and the railways and other strong financial and industrial organizations; but the President possessed the fullest authority and influence. He had established a supremacy in many legislative matters, had carried out a vigorous foreign policy, and might have gone on to a third term had he wished. Instead, he chose to put forward William H. Taft, Secretary of War in his Cabinet, and previously head of the Government of the Philippine Is., as his choice for the Republican candidate in the impending presidential election. With that powerful backing Taft was nominated, and in the election of Nov. 1908 easily defeated William J. Bryan, for the third time the Democratic candidate. The Republican party cast 7,700,000 votes against the Democrats' 6,400,000 and secured 321 of the 483 electoral votes. The Republicans also had a clear majority in both Houses of Congress. The country was prosperous, contented, and aroused by the positive and constructive policies of President Roosevelt and of several state governors, who had furnished the country an example of the possibility of personal leadership by state and national executives, as against the leadership of self-constituted groups which had been usual in both state and national Legislatures.
The people of the United States were much more conscious of themselves in 1908 than in recent periods, because they had come to recognize the variety of their make-up. The total pop. in 1910
