844 ESTABLISHMENT OF MILITARY 'JUSTICE .

' Further on, referring to this power, the same Senator said :
I think it is a protection to the military men of the country to have suc h
a court . It will come to be, when the hour of passion to which my colleagu e
has referred shall have passed away, a court deliberate in its proceedings, and ,
I hope and have no doubt, wise in its adjudication . Then it will be a blessin g
to the country and a protection to our military men. Necessarily, when ou r
Army shall come to be 50,000 strong, there will be many military trials fo r
military offenses of military men . There ought to be a court of appeal, an d
this is intended to be a court of appeal, a court in which the judgment of th e
courts-martial may be reviewed and if improper revised . Such a court, it seems
to me, ought to be in the Army ." (See Cong. Globe, pt . 4, 39th Cong ., 1st sess . ,
1866, pp . 3672-3676, et passim . )
It was these legislative antecedents that were brought forward, without
substantial change of language, as the existing law (sec . 1199, R . S .) no w
under discussion. -NI
8 . This office, while ignoring its right and duty to revise for prejudicia l
other than jurisdictional -error, has with strange inconsistency been quick t o
assert its power to declare a judgment and sentence null and voil- on th e
ground that the proceedings were, in its judgment, coram non judice . Afte r
the large armies of the Civil War had been demobilized and their activitie s
were no longer a matter of immediate concern to this department, and th e
Army had become, in point .of size, but a small national police force, this office ,
for reasons unexpressed and unknown, restricted itself to the correction o f
such jurisdictional error alone. The practice seems to have been adopte d
without thoughtful consideration of the law or policy involved or the resultin g
injustice . The opinions of this office, beginning with the early eighties, assume,
without argument or reason, that the office was so limited . It can not fairly b e
said that upon this specific question the office has ever fairly and thoughtfull y
expressed itself . Extracts from two of the opinions, typical of all, will b e
sufficient to show the general character and nature of these holdings .
In an opinion under date of August 10, 1885, approved by the Secretary o f
War, the Acting Judge Advocate General Lieber held as follows :
"As the whole matter is understood to be recommitted to this office fo r
examination, including the letter referred to . I beg to remark that in actin g
upon the sentence of a court-martial the reviewing authority acts partly in a
judicial and partly in a ministerial capacity . He ` decides' and ' orders '
(Army Regs ., par . 918) . Without his decision the sentence is incomplete . His
decision is an exercise of judicial functions, and is as much beyond the contro l
of other constituted authority as the findings of the court are beyond his . He
can not be ordered to revoke it, and if it be adhered to, the sentence can b e
removed in no other way than by the President in the exercise of his par-
doning power (or set aside by the President when void by reason of a want o f
jurisdiction) . "
In the case of Lieut . J. N. Glass, tried by general court-martial, this office ,
in a review under date of July 20, 1886, signed by Acting Judge Advocat e
General Lieber, concluded as follows :
" The proceedings, findings, and sentence in this case having been approved
by the reviewing officer in the exercise of his proper functions, they are be-
yond any power of revision on the part of higher authority, but the Presiden t
by the virtue of his pardoning power may remit the unexecuted part of th e
sentence . The latter course is respectfully recommended by this office . "
In the opinion first above cited, which is a fair example of the many tha t
have followed, the then acting Judge Advocate General took the view tha t
the proceedings of a general court-martial could be set aside for a want o f
jurisdiction . But whence came that power? In declaring it to he competen t
to declare the proceedings of a general court-martial void for want of juris-
diction he evidently overlooked the fact that in declaring a trial void for wan t
of jurisdiction some functionary must sit in an appellate capacity for whic h
there must be some statutory or common law authority . As a matter of fact, n o
statutory or other authority can be found for the exercise of the power to de-
clare a trial void for want of jurisdiction unless it can be found in that pro -
vision of section 1199 Which confers a general revisory power upon the Judg e
Advocate General . If the power to revise includes the power to declare pro-n
ceedings void for want of jurisdiction, it must also by any fair constructio
include the power to declare a judgment wrong as a matter of law and revers e
it . If this office has the one power it necessarily has the other, and if it ha s
not the latter power, it has not the former . By the plain language of the statut e
this office has both .