To Raise and Discipline an Army

Major General Enoch Crowder, the Judge Advocate General’s Office, and the Realignment of Civil and Military Relations in World War I

Joshua Kastenberg

• Publisher: Northern Illinois University Press
• Year: 2017
• eBook ISBN: 9781609092139
• Topic: Historia
• Subtopic: Historia militar y marítima

Major General Enoch Crowder served as the Judge Advocate General of the United States Army from 1911 to 1923. In 1915, Crowder convinced Congress to increase the size of the Judge Advocate General's Office—the legal arm of the United States Army—from thirteen uniformed attorneys to more than four hundred. Crowder's recruitment of some of the nation's leading legal scholars, as well as former congressmen and state supreme court judges, helped legitimize President Woodrow Wilson's wartime military and legal policies. As the United States entered World War I in 1917, the army numbered about 120,000 soldiers. The Judge Advocate General's Office was instrumental in extending the military's reach into the everyday lives of citizens to enable the construction of an army of more than four million soldiers by the end of the war. Under Crowder's leadership, the office was responsible for the creation and administration of the Selective Service Act, under which thousands of men were drafted into military service, as well as enforcement of the Espionage Act and wartime prohibition. In this first published history of the Judge Advocate General's Office between the years of 1914 and 1922, Joshua Kastenberg examines not only courts-martial, but also the development of the laws of war and the changing nature of civil-military relations. The Judge Advocate General's Office influenced the legislative and judicial branches of the government to permit unparalleled assertions of power, such as control over local policing functions and the economy. Judge advocates also altered the nature of laws to recognize a person's diminished mental health as a defense in criminal trials, influenced the assertion of US law overseas, and affected the evolving nature of the law of war. This groundbreaking study will appeal to scholars, students, and general readers of US history, as well as military, legal, and political historians.

1

ENOCH CROWDER AND THE WILSON PRESIDENCY

UNLIKE DOZENS OF GENERAL OFFICERS during the Civil War and World War II, whose names have been kept in the nation’s memory by veterans, politicians, newsmen, and ultimately historians, few of the army’s World War I generals are remembered today. Other than John J. “Black Jack” Pershing, who commanded the American Expeditionary Forces, one is hard pressed to find the names of corps and division commanders, let alone full-length biographies. The Judge Advocate General’s Department is no different in this context. General Holt, the Civil War judge advocate general who, in addition to arguing before the Supreme Court on the legitimacy of expanded military jurisdiction in wartime, presided over the trial of Mary Surratt and clashed with President Andrew Johnson, has a modern full-length biography, and several other studies focus on him. But Crowder is seldom mentioned today, even in biographies of President Woodrow Wilson. Arguably, Crowder’s wartime responsibilities were more extensive than Holt’s. His prewar duties encompassed what today includes not only those of the Judge Advocate General’s Corps, but also that of the modern-day civilian general counsel who serves as the legal advisor to the secretary of the army. After the United States’ entry into the war against Germany, Wilson appointed Crowder as the director of the nation’s first-ever selective service program in a position titled provost marshal of the United States. Holt did not oversee the Civil War’s state-run conscription programs or serve as a provost marshal. On Secretary of War Newton Baker’s insistence, Crowder also retained full authority as judge advocate general of the army. Because Crowder staffed the Selective Service Agency with commissioned judge advocates, studies of conscription and of the Judge Advocate General’s Office are necessarily intertwined.¹

During World War II, David Lockmiller, a North Carolina historian, authored a biography of Crowder, but fewer than three hundred libraries now possess it. In the past decade, Colonel Frederic Borch, a retired judge advocate and army historian, published a biographical article on Crowder as well. Both works present a good timeline of the broader aspects of Crowder’s military career. However, neither Lockmiller nor Borch intended a study of the full range of duties Crowder undertook, his impact on the shaping of the nation’s military laws, or the conduct of the Judge Advocate General’s Office during the First World War. With the exception of Lockmiller and Borch, the few historians or legal scholars who mention Crowder do so in colorful and sometimes quite uncomplimentary terms. “Crowder was a bony, vile tempered bachelor whose hobby was work and whose creed was efficiency,” penned Merion and Susie Hinds in 1997. In 2004 noted military historian Edward M. Coffman in his Frontier Regulars called Crowder an “outstanding bureaucrat,” but two decades earlier in a biography of Army Chief of Staff Peyton C. March, Coffman referred to Crowder as “this vinegary Missourian.” In between these two books, Coffman complimented Crowder as a “prodigious and efficient worker.” In 1992 legal historian Jonathan Lurie, in Arming Military Justice: The Origins of the United States Court of Military Appeals, 1775–1990, presented the first—and perhaps only—dispassionate detailed analysis on the origins of the modern Court of Appeals for the Armed Forces. He characterized Crowder as driven and externally humorless, which appears to be what Crowder’s contemporaries thought of him. Some of Crowder’s peers had little positive to say for him. General George Wilcox McIver, the chief of the Militia Bureau from 1915 to 1917, wrote in his autobiography in 1945 that Crowder was a “very ambitious man, greedy for power and authority.” Likewise, General Peyton March, the army’s chief of staff for much of the war, disparaged Crowder. On the other hand, Felix Frankfurter, who served at the Judge Advocate General’s Office during the war, later lauded Crowder for his intelligence and work ethic.²

Crowder was born on April 11, 1859, in Grundy County, Missouri, roughly thirty miles from Pershing’s birthplace. The two men had a similar upbringing, not only in that they came from parents of limited means, but also in that both excelled in their rural schools and both taught in public schools before attending the United States Military Academy. Crowder matriculated at the academy in 1877, four years prior to Pershing. At that time, General John McAlister Schofield was the academy’s superintendent, and midway through Crowder’s education, General O. O. Howard replaced Schofield. Both Schofield and Howard were Civil War veterans who had led large masses of soldiers in battle, and following the war, each would shape aspects of army discipline. Schofield influenced military discipline throughout the late nineteenth century by advocating for statutory reforms for courts-martial and the establishment of a military prison, while Howard unsuccessfully tried to open the army to the possibility of African American officers. During Crowder’s time at the academy, he was exposed to both Schofield’s view of an “enlightened military discipline” and the military establishment’s attempts to preclude the commissioning of black officers despite Howard’s efforts. It does not appear that Crowder ever openly advocated for the commissioning of African American officers, but he also did not take part in hazing or other actions to stifle the efforts of African Americans aspiring to become commissioned officers. Neither his official memoranda nor personal correspondences indicate that he viewed African American soldiers as a separate class to be judged by different standards. One incident, which perhaps provides some insight into his view on race, was his opposition to Theodore Roosevelt’s summary dismissal of 167 African American soldiers after the so-called “Brownsville Raid.” Crowder conceded that Roosevelt had the presidential authority to dismiss the soldiers but argued that to do so after the soldiers had been exonerated by an army investigation denied them due process. In 1917 Crowder pushed the War Department to commission the army’s first-ever African American judge advocate. He also, on one occasion, informed Baker that he did not oppose hiring a female attorney for his office.³

Crowder’s first assignment was to Texas, where he patrolled the border with Mexico, and in his free time he studied law. As Texas was a frontier state with no formal state bar examination, he became a licensed attorney by satisfying a local judge of his competence in law through a written test. In 1884 Crowder transferred to Jefferson Barracks, Missouri, and he resumed his legal study, this time under the tutelage of Thomas Crittenden, a Civil War veteran and former state governor. Jefferson Barracks was one of the army’s posts used for the basic training of new soldiers. In the late nineteenth century, the army’s basic training regimen was a mere thirty days, and the majority of recruits came from the lower economic echelons of American society, with a large proportion of immigrants. Crowder’s experience of supervising basic training later influenced his decision to endorse conscription, and it shaped his view on military discipline to push for certain reforms while maintaining an austere command-driven court system. In the midst of his law studies under Crittenden, the War Department ordered Crowder to return to Texas, where he led cavalry patrols against Apache Indians. Led by Geronimo, for several years the Apaches had effectively waged guerilla warfare against both Mexico and the United States. In late 1886 Geronimo and his fighters surrendered and Crowder returned once more to Jefferson Barracks.⁴

While in Missouri, Crowder also took on additional employment as a professor of military science at the University of Missouri, and he obtained a law degree from its law school. In 1889 he attached to the Eighth Cavalry and was sent to the Dakota Territory to take part in the final campaign against the Sioux Indians. To get to the Dakota Territory, the regiment traversed from its Missouri and New Mexico outposts to the Canadian border. Crowder took part in the long march but did not see fighting against the Sioux, and shortly after the conclusion of hostilities he was assigned as the acting judge advocate to the Department of the Platte. In 1890 he suffered a debilitating head injury that caused painful headaches for the rest of his life.⁵

From his time as an acting judge advocate to his service at the Department of the Platte, Captain Crowder learned that a judge advocate’s interaction with civil authorities could draw the secretary of war’s interest if not the president’s or Congress’s. On March 31, 1896, Secretary of War Daniel Lamont ordered Crowder to explain why he had advised the commander of Fort Robinson, Nebraska, to refuse to comply with an arrest warrant for a lieutenant assigned to the post. A local sheriff had accused the lieutenant of violating Nebraska law by selling beer without a state license. Crowder reported to Lamont that because the lieutenant was ordered to control the fort’s post store, and the beer sales from the store had been approved by Stephen Elkins, Lamont’s predecessor, as well as by General Schofield, the issue was simply a matter of the lieutenant following orders. Crowder also concluded that since the post store was on “a military reservation and therefore an instrumentality of the federal government,” a state could not regulate it. This incident appears unremarkable at first glance, but Lamont’s inquiry occurred as a result of Senator William V. Allen’s complaint to the War Department. Crowder then informed Lamont that the sheriff was a part owner of a town saloon as well as a member of an association of saloon owners that had been formed in Nebraska and the Dakotas for the purpose of forcing the army’s post stores to elevate their prices so that soldiers would purchase alcohol at the local saloons rather than on post.⁶

Following Crowder’s explanation to Lamont, the army’s judge advocate general, G. Norman Lieber, questioned Crowder as to why he believed that a post-exchange store could be considered an instrumentality of the United States because, although Crowder’s view may have reflected the prevailing belief in the War Department, no statute articulated that a post store was such an instrumentality. Crowder likely anticipated Lieber’s query. He responded that he had consulted with Oliver P. Shiras, the United States District Court judge for the District of Iowa, and Shiras accepted his position that a post store was such a federal instrumentality. That Shiras, a former judge advocate in the Civil War and a cousin of a sitting Supreme Court justice, might have been biased toward the War Department was of no concern to Crowder. What did matter to him was that his response pleased Lieber, who in turn supported his transfer into the Judge Advocate General’s Office. In 1896 the War Department approved Crowder’s permanent transfer to the Judge Advocate General’s Office with a promotion to major. He was thirty-six years old, and more importantly, had been the sole officer selected from more than fifty officers who applied. His supporters included the former secretary of war, Redfield Proctor; Senator Francis Marion Cockrell of Missouri; Nebraska territorial delegate Experience Estabrook; Henry Clay Caldwell, a federal judge serving on the Court of Appeals for the Eighth Circuit; Generals John C. Bates, Wesley Merritt, and Thomas Ruger; and Colonels Elwell Otis and Milton Moore, the commandant of the Missouri National Guard.⁷

In 1898 the War Department sent Crowder to the Philippine Islands to serve as judge advocate to Major General Merritt. Although Merritt quickly returned to the United States, Crowder remained in the islands and reported first to Major General Otis and then to Major General Arthur MacArthur. Otis, a Harvard-educated lawyer, became thoroughly impressed with Crowder and expanded his duties beyond reviewing courts-martial and advising on contractual obligations. At Otis’s direction, Crowder also undertook a study of Spanish court records, became president of the Board of Claims, and was appointed as an associate justice to the Philippine Supreme Court.⁸

The Philippine Insurrection, which has been superbly written about in Brian Linn’s The Philippine War, 1899–1902, was a watershed for several officers, Crowder included. The army’s senior commanders such as Otis, MacArthur, and Merritt had their military beginnings in the Civil War, but they commanded men who were born after that conflict. When senior officers retired or were relieved, the younger generation of officers, who had waited over a decade to gain promotion to captain, advanced up through the field grade ranks of major, lieutenant colonel, and colonel. Some officers, such as Pershing, jumped rapidly from captain to general. The Philippines experience taught Crowder that communications and well-defined lines of command and control were essential to a modern military. In one instance, a line officer waited for Crowder’s approval to order soldiers to attack Emilio Aguinaldo’s forces, and Crowder had to explain to the officer that as a judge advocate assigned to the staff, he had no authority to approve such an order. It had simply been the case that Crowder was the senior officer in the area and the line officer assumed Crowder had the authority to command troops.⁹

Crowder’s judge advocate duties in the Philippines were, on one level, similar to his duties at the Department of the Platte. For instance, he reviewed over six hundred courts-martial and oversaw the terms of various War Department contracts. Yet there were unique aspects to his Philippine tenure: had he not been stationed in the Philippines, he would not likely have advanced to become judge advocate general. During his service on the Philippine Supreme Court, he proved his intellectual prowess by authoring the protectorate’s criminal procedural code. In 1900 MacArthur, who by this time commanded all forces in the Philippines, promoted Crowder to be his military secretary and legal advisor. As such, Crowder served as a de facto general counsel and attorney general to the military government. Although William Howard Taft, President William McKinley’s civilian representative and eventual governor general of the Philippines, clashed with MacArthur, he too became friends with Crowder and frequently sought Crowder’s advice. While Crowder’s lifelong relationship to Taft was important to his advancement, during his time in the Philippines he also befriended John Bassett Moore, one of the nation’s leading internal law experts and a frequent counsel to the State Department and delegate to various international tribunals.¹⁰

Early on, it became apparent to Taft not only that Crowder was a superb lawyer but also that they had similar political views. Crowder likewise took an interest in Taft’s advancement. In 1901 he expressed to Taft his hope that Theodore Roosevelt would offer Taft a cabinet post. The following year, when Roosevelt ordered Taft to travel to Rome and meet with Vatican officials to negotiate a purchase of papal properties, as well as explain to the Holy See how the US government would protect the rights of Catholics in the Philippines, Taft, in turn, asked a willing Crowder to accompany him. One of the benefits to having Crowder on the mission was that the United States’ military leadership in the Philippines worried that the local churches could stoke rebellion by asserting claims that the army had unlawfully taken over its property. Crowder realized that affirmative “renunciation to title” by the Vatican would minimize this possibility, and he was able to obtain the renunciation statement. The purchase of Vatican—sometimes referred to as friars’—lands resulted in over 30,000 Philippine citizens becoming small landholders. In an era when property rights were considered the entry into participation in government and the paramount right of a citizen, Taft and Crowder believed that the creation of 30,000 landholders was an important step toward creating an indigenous representative government. In a later instance, Taft turned to Crowder to defuse a political controversy. During a campaign speech in 1908, Taft lauded Ulysses Grant but noted that he had resigned from the army in 1854 to avoid a court-martial. In his autobiography Grant claimed to have resigned his commission to support his wife and two children. Grant’s son took offense at Taft’s statement, but Crowder conducted the necessary research to prove Taft’s statements were correct, and the younger Grant withdrew his complaint.¹¹

There is one apparent instance from Crowder’s career in the Philippines that would run afoul of the law of war as this body of law had developed since 1861. During the Civil War, the War Department issued General Order 100, which served as the first codified law of war in US military history, and the code remained in effect throughout Crowder’s career. In 1900 he recommended against court-martialing a Private Putnam of the Twentieth Kansas Volunteers. After a battle at Caloocan, Putnam murdered two defenseless prisoners of war, and an acting inspector general wanted him court-martialed for murder. Crowder advised both Otis and MacArthur against a court-martial, even though he conceded a “terrible crime, had been committed with no justification.” Crowder also acknowledged that Putnam’s conduct was not isolated, and if he were prosecuted, it was “probable that facts would develop implicating many others.” Though he recognized that Putnam’s superiors who were in a position to stop the murders were even more liable for the crime than Putnam himself, a desire to protect the superiors was not the reason why Crowder later claimed he was reticent to hold Putnam accountable. “Caloocan was one of the initial fights of the insurrection, and I was impressed with the view that the publicity incident to a trial for this unlawful killing would result in giving information to the insurgent leaders that we failed to accord to insurgent prisoners of war, the protection to which they were entitled under the laws of war,” he informed Secretary of War Elihu Root. “This would lead to acts of reprisal in the event that any of our soldiers would be captured by insurgents in subsequent fights.” Moreover, Crowder, like Otis, MacArthur, and even Taft, believed that General Order 100 applied only when an opposing force adhered to the laws of war. On the other hand, Crowder approved the courts-martial of General Jacob Smith and Major Littleton Waller for war crimes.¹²

In 1901 Crowder returned to the United States and was promoted over three senior officers to become deputy judge advocate general. In this posting he reported to Major General George Breckenridge Davis, one of the last Civil War veterans on active duty. Davis had enlisted in the First Massachusetts Volunteer Cavalry in 1861 at the age of sixteen. Following the war, and despite being a commissioned lieutenant, he attended the United States Military Academy and was formally commissioned into the army. In 1871 he was assigned to the Fifth Cavalry and served in the Wyoming and Arizona Territories, and in 1874 he returned to the academy as a Spanish professor. Davis became acquainted with Crowder during this time, though the historic record is sparse as to whether the two men remained in contact. After a brief tenure at the academy, Davis returned to the western frontier, but again in 1883 he returned to the academy to become a professor of law. In 1888 Davis was transferred to Washington, DC, to serve at the Judge Advocate General’s Department, and it was not until this time that he attended law school, earning an LLB from the Columbian Law School—the predecessor to the George Washington University Law School—by taking classes at night. He was a prolific writer in both law and history, and in 1901 he replaced Lieber as judge advocate general of the army.¹³

In 1903 Secretary of War Root initiated a wide-sweeping set of army reforms, and during this time he appointed Crowder as a deputy chief of staff with the task of analyzing the impact of pending reorganization legislation on the military establishment, as well as strategically analyzing the placement of troops, methods of training, and use of the new National Guard forces. Much of Crowder’s duties were nonlegal, and Root thought so highly of him that he later lobbied Woodrow Wilson to permit Crowder to remain as judge advocate general for the rest of his life. In 1904 Root assigned Crowder to observe the Japanese Imperial Army in the Russo-Japanese War. The importance of this duty cannot be overstated. The US Army had not fought in a truly large-scale modern war against a well-equipped adversary since 1865, and the last opportunity to observe such an event had occurred in the war France fought against Prussia and Prussia’s German allies in 1870–1871. But even that conflict did not involve the logistical hurdles that both Russia and J...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Introduction
• 1. Enoch Crowder and the Wilson Presidency
• 2. Staffing and Directing the Judge Advocate General’s Department: Duties and Discipline
• 3. The Conscripting and Training of a Disciplined Force
• 4. Judge Advocates in the AEF
• 5. International Law and Administrative Duties in War and after the Armistice
• 6. Political Oversight of Military Discipline
• 7. Courts-Martial, Concerns over Subversion, and Conscientious Objection
• 8. Courts-Martial and Discipline Controversy: 1918–1920
• Conclusion: Return to Normalcy and a Forgotten History
• Bibliography
• Notes
• Index