Title
Creator
Identifier
Date
Source
Text
I present you herewith the court martial proceedings in four cases occurring in the American Expeditionary Forces in France, each of which involves the imposition of the death penalty by shooting to death with musketry.
These cases have attracted widespread public interest, and with the papers are numerous letters and petitions urging clemency, most of which are of that spontaneous kind which are stirred by the natural aversion to the death penalty which humane people feel. Many of them are from mothers of soldiers whose general anxiety for the welfare of their sons is increased by apprehension lest exhaustion or thoughtlessness may lead their boys to weaknesses like those involved in these cases which the newspapers have described as trivial and involving no moral guilt, with the consequence that sons whose lives they are willing to forfeit in their country's defense may be ingloriously taken for disciplinary reasons in an excess of severity. Many of the letters are from serious and thoughtful men who argue that these cases do not involve disloyalty or conscious wrongdoing, and that whatever may have been the necessities of military discipline at other times and in other armies, the progress of a humane and intelligent civilization among us has advanced us beyond the helpful exercise of so stern a discipline in our Army in the present war.
I examined these cases personally, and had reached a conclusion with regard to the advice which I am herein giving before I had seen any of the letters or criticisms.
The record discloses the fact that the Divisional Commander, the Commander in Chief, General Pershing, the Chief of Staff, General March, and the Judge Advocate General concur in recommending the execution of the penalties imposed. The Judge Advocate General limits his concurrence to the technical statement that the proceedings in the cases are regular, and expressing regret that a more adequate conduct of the defense of the several men concerned was not provided, concurs in the recommendation of General Pershing. As I find myself reaching an entirely different conclusion, and disagreeing with the entire and authoritative military opinion in case, I beg leave to set out at some length the reasons which move me in the matter.
The cases must be divided into two classes, and I will deal first with the two young men convicted of sleeping while on duty; namely, Private Jeff Cook and Private Forest D. Sebastian, both of Company G, 16th Infantry.
These cases are substantially identical in their facts. The accusations were laid under the 86th Article of War, which reads: "Any sentinel who is found * * * sleeping upon his post * * * shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may direct."In both cases a Corporal inspecting along a front line trench found these young men standing in the proper military position, leaning against the trench, with their rifles lying on the parapet of the trench within easy reach of their hands. Each man had his head resting on his arm, and his arm resting on the parapet. The offenses were committed, in the Sebastian case on the night of and , and in the Cook case on or about the . In both cases the testimony was exceedingly brief, and showed that the night was dark and cold, that the soldiers had their ponchos and other equipment on, and in one case it was a fair inference that the poncho was drawn over the ears and trench helmet in such a way as to make it difficult for the soldier to hear the approaching steps of the Corporal. In each case the Corporal laid his own rifle upon the parapet, and took that of the soldier, carrying it away with him, and instructed the other sentinel, the men being posted in this outpost duty in twos, to shake the soldier and tell him to report to the Corporal for his gun. In each case the Corporal shamed the soldier for his neglect of duty, and pointed out to him the fact that not only his own life but those of others were at stake, and that he should be more zealous and alert. In neither case does either the Corporal or the fellow-sentinel swear positively that the accused was asleep, but I confess that on all reasonable grounds, taking the circumstances into consideration, it seems to me entirely likely that both men were asleep; but it is important to note that in neither case had the accused stepped away from his proper military post to sit down or lie down; both being found standing at their posts of duty in what is admitted to have been a correct military position, and if they were asleep their heads literally nodded over on to their arms without any intentional relaxation of attention to their duty so far as can be gathered from any of the surrounding circumstances.
These soldiers are both young. Sebastian enlisted into the Regular Army by volunteering on the , having had no previous military experience, his age at that time being 19 years and 6 months. He was, therefore, slightly more than 20 at the time of the alleged offense. Cook enlisted on the , without previous military experience, his age at that time being 18 years and 11 months. He was, therefore, at the time of the alleged offense, slightly under 20 years of age.
From the testimony it appears that both of these young men had been posted as sentinels doing what is called Double Sentry Duty, going on duty at four P. M., and remaining on duty until six A. M., with relief at intervals by other sentinels during the night, but with no opportunity to sleep during the night because of there being no place where they could secure sleep. It further appeared that neither of them had slept during the day before after having spent the previous night on gas sentinel duty, although both had tried to sleep during the day preceding the night of the alleged offenses but found it impossible because of the noise. In both cases the Commanding Officers of the soldiers who forwarded the charges and recommended trials by general courts martial added to his endorsement as extenuating circumstances the youth and failure of the soldiers to take the necessary rest when off duty on the first occupation of trenches.
It is difficult to picture to the eye which has not seen it the situation in which these young soldiers were placed. In the month of November the section of France in which these soldiers were stationed was cold, wet and uncomfortable in the extreme. No sort of shelter of any confortable kind could be provided near the trenches, because it attracts enemy observation and fire. Throughout one long night they performed duty as gas sentinels, duting the next day, when they perhaps ought to have sought more rest than they did seek, they found it difficult to secure any sleep because of the noise and discomfort of their surroundings. As a consequence on the night of the alleged offenses they had reached the place at which exhausted nature apparently refused to go further, and without any intentional relaxation of vigilance on their parts they dozed in standing positions at their posts of duty.
I am quite aware of the gravity of this offense, and of the fact that the safety of others, perhaps the safety of an army and of a cause, may depend upon such disciplinary enforcement of this regulation as will prevent soldiers from sleeping on sentinel duty; and yet I cannot believe that youths of so little military experience, placed for the first time under circumstances so exhausting can be held to deserve the death penalty, nor can I believe that discipline of the death sentence ought to be imposed in cases which do not involve a bad heart, or so flagrant a disregard of the welfare of others, and of the obligation of a soldier, as to be evidence of conscious disloyalty.
In both of these cases the reviewing Judge Advocate quotes with approval some observations of General Upton who in his work on military policy points out that action taken by President Lincoln in the early days of the Civil War pardoning or commuting sentences in cases of death penalty led to the need of greater severity at a later period in the interest of discipline; but the cases which General Upton had in mind were cases of desertion in the face of the enemy involving cowardice, and cases of substantially treasonable betrayal of the nation, and I can see no persuasion in them as an example. Rather it would seem to indicate that the invocation of this opinion of General Upton indicates a feeling on the part of the reviewing Judge Advocate that while these particular cases might not be deemed on their own merits to justify the death sentence, that, nevertheless, as a disciplinary example such action would be justified. I am not, of course, suggesting that any of the military officers who have reviewed these cases would be willing to sacrifice the lives of these soldiers even though innocent; but I do think that if these cases stood alone no one of the reviewing officers would have recommended the execution of these sentences; their recommendations being, in my judgment, soldierly and in accordance with the traditions of their profession, and based upon a very earnest desire on their part to save the safety of their commands, and the lives of other soldiers; but, nevertheless, to some extent influenced by the value to the discipline of the Army of the examples which their execution would afford.
I have not sought to examine the learning of this subject, and, therefore, have not prepared a history of the death penalty as a military punishment; but I think it fair to assume that it arose in times and under circumstances quite different from these, when men were impressed into armies to fight for causes in which they had little interest and of which they had little knowledge, and when their conduct was controlled without their consent by those who assumed to have more or less arbitrary power over them. Our army, however, is the army of a democratic nation fighting for a cause which the people themselves understand and approve, and I had happy and abundant evidence when I was in France that the plain soldiers of our Expeditionary Forces are aware of the fact that they are really defending principles in which they have as direct an interest as anybody, principles which they understand, approve and are willing to die for.I venture, therefore, to believe that the President can with perfect safety to military discipline pardon these two young men; and I have prepared and attached hereto an order which, if it meets with your approval, will accomplish that purpose, and at the same time, I believe, upon its publication further stimulate the already fine spirit of our army in France. Such an order as I have here drawn would be read by every soldier in France and in the United States, and coming from the Commander in Chief would be a challenge to the performance of duty, quite as stimulating as any disciplinary terror proceeding from the execution of these sentences. In the meantime, public opinion in this country would, I believe, with practical unanimity approve such action on your part.
In the cases of Stanley G. Fishback and Olon Ledoyen, the charges are substantially identical in that each of them is accused under the 64th Article of War of having "wilfully disobeyed any lawful command of his superior officer." The facts show that on the , these two young men in broad day light in the theatre of war, at a place back of the actual line, were directed to bring their equipment and fall in for drill. Each refused, whereupon they were warned by the lieutenant who gave the order not to persist in their refusal on the ground that grave consequences would ensue. They were not warned that the penalty of disobedience was death; but were advised earnestly to comply. Both persisted in their refusal. Each gave as his reason for refusing that he had been drilled extensively the day before, that they had gotten cold, the weather being extremely severe, and that they had not yet recovered from the effects of that exposure.Both plead guilty at the trial.
It is perfectly obvious that this order ought to have been obeyed. It was a proper military order, and it seems to me inconceivable that such obstinate refusal on so trivial a matter could have been made with any consciousness that the death penalty was the alternative. Nevertheless the disobedience was wilful, undisciplined and inexcusable, and it ought to be punished with a suitable punishment.
The Judge Advocate General in reviewing these cases limits himself again to the technical correctness of the proceedings; but in a subsequent memorandum he called the attention of the Chief of Staff to the fact that four cases of sleeping on post arising in the same Regiment at approximately the same time resulted in acquittal of the accused on substantially the same evidence as that recited in the Sebastian and Cook cases above reviewed, and that in six cases similar offenses committed elsewhere in France had led to very moderate penalties. The Judge Advocate General says in this memorandum: "In addition to the foregoing, the study in this office reveals a number of cases which have come in from France where men have been convicted of wilful disobedience of orders under circumstances which do not distinguish them as to the locus of the offense from the cases of Fishback and Ledoyen, who were sentenced to death. The sentences in the cases referred to run from a few months to several years' confinement."In other words, the Judge Advocate General reviewing generally the state of discipline in the Army in France, and the steps taken to enforce it, reaches the conclusion that up to the time of the trial of these cases the offenses of which these soldiers were convicted had been regarded as quite minor in their gravity. The Chief of Staff in commenting upon this memorandum of the Judge Advocate General is able from his own recollection to add that the wilful disobedience cases lately tried in France did not occur in the actual theatre of war, making at least that much of a distinction. But the case still remains one in which suddenly a new and severe attitude is taken without the record disclosing that any special order had been made notifying soldiers that the requirements of discipline would call upon courts martial thereafter to resort to extreme penalties to restore discipline.Both Ledoyen and Fishback are young. The record shows that Ledoyen enlisted on the , without previous military experience, his age at that time being 18 years and 1 month. Fishback enlisted on the , without previous military experience, his age being 19 years and 2 months. Each of them at the time of the commission of the alleged offenses was, therefore, less than 20 years of age. The record in the Fishback case shows that there had been previous shortcomings on his part in the matter of obedience. That is to say, he had once failed to report for drill for which he was required to forfeit 15 days pay; a second time failed to report for drill, penalty not stated; and a third time failed to report for fatigue duty, for which he was sentenced to one month at hard labor and to forfeit two-thirds of his pay for two months. He seems, therefore, to have found it difficult to accommodate himself to the discipline of the life of a soldier, and his offense hereunder reviewed is aggravated by this previous record.By a very extraordinary coincidence this record discloses the fact that these two soldiers were members of a company commanded by Captain D. A. Henckes. It is from the Captain of his company that the soldier most immediately learns discipline and obedience. The Captain sets the example, and inculcates the principles upon which the soldier is built. Now, this particular Captain Henckes, although for many years an officer in the Regular Army, was himself so undisciplined and disloyal that when he was ordered to France with his command, he sought to resign because he did not want to fight the Germans. Born in this country, and for twenty years an officer in its Army, under sworn obligation to defend the United States against all her enemies, domestic and foreign, he still sought to resign; and when the resignation was not accepted, and he went to France, the Commander in Chief was obliged to return him to this country because of his improper attitude toward the military service, and his country's cause in this war. He was thereupon courtmartialed, and is now serving a sentence of twenty-five years in the penitentiary for his lack of loyalty and lack of discipline.
I confess I do not see how any soldiers in his company could have been expected to learn the proper attitude toward the military service from such a commander. I do not suggest that the shortcomings of Captain Henckes be made an excuse for their disobedience, but these mere youths can hardly be put to death under these circumstances, and I, therefore, recommend that the sentence in each case be commuted to one involving penal servitude under circumstances which will enable them by confinement in the Disciplinary Barracks at Fort Leavenworth to acquire under better conditions a wholesomer attitude toward the duty of a soldier. Orders accompanying this letter are drawn for your approval which will carry out the recommendation here made.
In view of the fact that both Fishback and Ledoyen had been previously guilty of minor offenses as disclosed by the record the penalty suggested is three years confinement.
Newton D. Baker