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To Major General John L. Hines
June 25, 1925 Tientsin, China
I am deliberately stepping out of prescribed channels to bring a matter to your personal attention. Attached is a draft of a paragraph prepared by me for the annual Post Report. Please read it through and believe that I have deliberately understated the case.
The greatest change or shock I experienced on returning to troops, was in the post war method of administering justice. During the months I commanded the Post and Regiment, I continued unaware of what these changes really meant, but since I have investigated and listened to battalion commanders investigate numberless cases, and since I have been President of the one General Courts-Martial, of all Special Courts-Martials and also Summary Court Officer, my understanding of the situation has completely changed.
In brief, Ansell has imposed a harmful system on the Army.1 Unfortunately, practically all of our Judge Advocates are men without troop duty experience, and whose point of view is not at all that of a soldier. Also, none of the line officers who have commanded regiments and higher units since 1920 can appreciate the vicious phases of the present system. Only by sitting in with it can one understand.
The officers out here work harder than any other group with troops I have ever seen, yet we can only with difficulty find time for brief periods of training or schools where assemblies in large groups are desirable. The administrative work is also a heavy handicap on training, but I have not yet acquired a sufficiently detailed knowledge of its various phases to express a sound opinion in the matter.
But as to the system of administering of justice—we are deliberately squelching the soldierly spirit and developing a tribe of legal quibblers, and both at the expense of troop training. It is very depressing.
Pardon my bothering you in this way, but my purpose is impersonal and a desire to serve.
G. C. Marshall, Jr.
Including the Sub-Post of Tongshan and the rifle camp at Nan Ta Ssu, the following trials were held (to June 20, 1925):
General Courts-Martial14* 0 14
Special Courts-Martial54 3 57
Summary Courts-Martial181 9 190
In this connection it is deemed important to comment on the present methods of administering justice in the army. Supposedly for the fuller protection of the rights of the accused, an elaborate system of preliminary investigations is required, and in the trial of a case, a complicated procedure is followed and a rather strict adherence to technical rules of evidence is enforced. It is believed that, in general, the changes in method imposed since 1918 react to the disadvantage of the military establishment and, in certain particulars, to a material extent.
The present system seriously interferes with the major business or problem of preparing the troops for field service (discipline, morale, schools, garrison and field training, all included). An honest compliance with regulations governing preliminary investigations absorbs so heavy a percentage of the time of the field officers of a command, that they are prevented from exercising that supervision or control over troop training and schools of instruction, which is their normal function; the presence of the witnesses at these investigations for the period required in order to reduce their evidence to a concise written statement, is also prejudicial to troop training; and the cumbersome procedure of a general court-martial absorbs the time of what appears to be too large a number of officers for too long a period, without advantage to the administration of justice.
A very conservative estimate of the average number of officer and man hours absorbed by investigations, court procedure, etc., for each separate case is as follows:
Officer hoursMan hours
General Courts-Martial65* 30
Special Courts-Martial23 20
Summary Courts-Martial4 8
Based on the foregoing estimate, the courts-martial proceedings of this small command for the preceding twelve months occupied 2981 officer hours and 3080 man hours. Assuming an undesirable enlisted man is eliminated by dishonorable discharge, following four summary court and one special courts-martial conviction, the total of officer and man hours lost from purely military duties are estimated as 99 officer hours and 75 man hours. In other words, three or four consistent offenders in a regiment can have an important and unfortunate effect on the training of that regiment, especially when it is remembered that lack of thoroughness in purely military instruction is often passed over because not detected, while mistakes or omissions of routine in administering justice are promptly dealt with in a disciplinary way.
From the view point of the accused, it is believed that the present involved procedure in special and, particularly in general courts-martial, either reacts to his disadvantage through the unavoidable effect on the court of monotonous repetitions of what soon become meaningless formalities, or to the advantage of the accused when technical objections and the morale effect of purely technical rulings by higher authority invariably cause a few members of a court to turn away from the clearly apparent facts and allow the accused to find protection under some meticulous application of American rules of evidence for criminal law procedure, which are now the subject of increasingly unfavorable public opinion.
Court-Martial practice and procedure in the Regular Establishment prior to 1918, it is believed, brought out the facts, and justice was administered accordingly. Under the present system, the real issue is frequently befogged in the ineffective form of ceremony and quibbling over minutia, while the training of the troops suffers materially. The purpose of the peace time army is being seriously interfered with by the methods now imposed for performing the incidental obligation of administering justice to individuals.
It is recommended that the present system of investigating charges be simplified and left more to the discretion of the convening authority; that the formalities of court procedure and record be simplified; and that the present policy of insistence upon extreme technical observance of the rules of evidence be moderated more in accord with past military court procedure.
Document Copy Text Source: John L. Hines Papers, Library of Congress, Washington, D.C.
Document Format: Typed letter signed.
1. Brigadier General Samuel T. Ansell (U.S.M.A., 1899) had been acting army judge advocate general during 1917-18. He inaugurated a movement resulting in the reformation of the army court-martial system and the adoption of liberalized articles of war. The changes were enacted into law in chapter two of the army reorganization act of June 4, 1920. The basic changes from the previous (1917) code are listed on pp. viii-x of U.S., War Department, Office of the Judge Advocate General, A Manual for Courts-Martial (Washington, D.C.: Government Printing Office, 1920). In particular, the new Articles of War, 70, made the preliminary investigation of charges more strict than previously, and a requirement was added that the accused could have full opportunity to cross-examine witnesses at the preliminary examination.
2. Marshall added the asterisks in the tables and a handwritten note at the top of the inclosure: “I have ignored on[e] GCM [General Court-Martial] which took up over 650 officer hours.”
Recommended Citation: The Papers of George Catlett Marshall, ed. Larry I. Bland and Sharon Ritenour Stevens (Lexington, Va.: The George C. Marshall Foundation, 1981- ). Electronic version based on The Papers of George Catlett Marshall, vol. 1, “The Soldierly Spirit,” December 1880-June 1939 (Baltimore and London: The Johns Hopkins University Press, 1981), pp. 278-280.