The Army Lawyer
Judge Advocates in the Great War
|Major General Enoch Crowder, who served as the Judge Advocate General from 1911 to 1921, took a leave of absence from his duties as the Army's top uniformed lawyer to oversee the implementation of the Selective Service Act of 1917. In this photo, taken at the U.S. Senate Building on 27 July 1918, Crowder (second from left, front) poses with officers who assisted him at the second drawing of draft numbers.|
When the Congress declared war on Germany and the other Central Powers on 6 April 1917, America’s Army was ill-prepared to fight what would later be called the “Great War.” After all, the entire Army consisted of 125,000 Regular Army Soldiers and 67,000 National Guardsmen along the Mexican border. Moreover, the Army was built around regiments; larger units such as divisions, corps, and armies existed only on paper. But, by the time what we now call World War I ended, on 11 November 1918—just nineteen months later—the Army had grown to 3.7 million, with two million men serving in the American Expeditionary Force (AEF) in France.
As for the Judge Advocate General’s Department (JAGD), as the Corps was then known, it underwent a similar transformation in size and organization: from seventeen officers, four of whom were working in Washington, D.C., to an unprecedented 426 judge advocates by December 1918. For the first time, the Judge Advocate General was given the rank and pay of a major general (he had worn a single star since the Civil War), and, for the first time, Reserve and temporary first lieutenants and captains were authorized in the JAGD. When the U.S. entered World War I, all uniformed lawyers were Regular Army officers. So, who were these military attorneys? What did they do? And where did they do it? Since November 2018 marks the 100th anniversary of the armistice that ended World War I, now is the time to tell the story of lawyers who served in our Regiment a century ago.
The American Army in World War I
In April 1917, Secretary of War Newton D. Baker, aided by Army Chief of Staff Hugh L. Scott and Assistant Chief of Staff Tasker Bliss, began organizing massive efforts to raise, clothe, equip, train, and ship U.S. Soldiers for service in France. Secretary Baker selected Major General (MG) John J. Pershing to be the AEF commander and sent him to France the following month. In June 1917, four regular infantry regiments sailed for France; when they arrived, MG Pershing formed them into the 1st Division. The 2d Division, consisting of a Marine brigade and an Army brigade, was formed in France in early 1918. All other divisions were raised in the U.S. and shipped to France, but this went slowly; by the end of 1917, there were only four divisions in the AEF, none of which were prepared for full-scale combat.1
Organizing and managing a rapid expansion of what had always been a very small professional Army was incredibly challenging. What did the AEF need? What was possible? And did the War Department have the tools to raise and equip and supply a separate, independent American Army located thousands of miles away from the U.S.?
Ultimately, with manpower needs satisfied by conscription (Congress passed a Selective Service Act in May 1917), the Army organized volunteers and draftees into fifty-four divisions of 28,000 men each. Forty-two of these divisions deployed to France. Twenty-nine would see combat. The first U.S. offensive action, an attack by the 1st Division on Cantigny, took place in May 1918. In June, U.S. troops fought at Chateau-Thierry and Belleau Wood. The following month, Americans were fighting along the Marne River and Soissons. The greatest AEF contributions to the Allied cause, however, came after August 1918 when the U.S. First Army reduced the Saint-Mihiel salient in two days and then, in September, launched massive attacks between the Argonne Forest and the Meuse River. When the armistice ended the fighting in November 1918, there were almost 53,000 dead in the AEF; another 202,000 had been wounded in action.2
Who were the Judge Advocates? What did they do and where did they do it?
The unprecedented expansion of the U.S. Army after Congress declared war on the Central Powers required a complementary increase in uniformed attorneys to support the new division-based force. Initially, the JAGD decided that obtaining direct commissions for prominent civilian attorneys was the best way to support the Army. Consequently, on 17 June 1917, just two months after America entered the war, the War Department announced that it was commissioning twenty civilian attorneys to be judge advocates. These attorneys were to “be assigned to a division of the Army and . . . all of them would be Majors on the staff of the Judge Advocate General in the field.”3 Since there were seventeen uniformed lawyers in the JAGD at the outbreak of World War I, adding twenty majors more than doubled the size of the department.4
According to the War Department, “a great many distinguished lawyers and legal professors, men of national standing,” applied to be Army lawyers. There were so many “highly qualified” applicants, said the Army, that it was “hard ... to select a few from so much good material.”5 That said, the Army’s Committee on Public Information announced that the following had been selected to be directly commissioned as majors:
- Henry L. Stimson, ex-Secretary of War;
- Professor Eugene Wambaugh, Harvard Law School;
- Professor Felix Frankfurter, Harvard Law School;
- Dr. James Brown Scott, leading authority on international law;
- Professor John H. Wigmore, Dean of Northwestern University;
- Gaspar G. Bacon, son of Robert Bacon, former U.S. ambassador to France;
- Frederick Gilbert Bauer of Boston;
- George S. Wallace of Huntington, West Virginia;
- Nathan W. MacChesney of Chicago;
- Lewis W. Call of Garrett, Maryland;
- Burnett M. Chiperfield, ex-Congressman from Chicago;
- Joseph Wheless of St. Louis;
- George P. Whitsett of Kansas City;
- Victor Eugene Ruehl of New York;
- Thomas R. Hamer of St. Anthony, Idaho;
- Joshua Reuben Clark, Jr., of Washington;
- Charles B. Warren of Detroit;
- Edwin G. Davis of Boise, Idaho; and Hugh Bayne of New York.6
The Army insisted—and well may have intended—that these twenty new judge advocates would see action in France. As the Committee on Public Information explained:
It would be well to disabuse the public mind of any superstition to the effect that the applicants under the legal branch of the army are looking for a “snap” or for a “silk stocking” position far in the rear of the actual fighting. The officers acting on the staff of the Judge Advocate General will be members of the actual fighting force, and, in the pursuit of duty, will be brought into the danger zone just as often as other specialized commissioned men, medical officers, for instance. The large percentage of casualties among army doctors fighting in France will stand as a convincing argument that military surgeons are not spared when the general assault begins.7
Of the twenty attorneys identified in the War Department’s press release, all but one—Gaspar G. Bacon8—ultimately accepted direct commissions as majors in the JAGD Reserve. Additionally, while the Army had insisted that these new lawyers in uniform would be part of the “actual fighting force,” only about half of the men chosen by the JAGD joined the AEF and deployed to Europe; the remainder did not leave U.S. soil. But their service in the JAGD was exemplary, and many went on to make even greater contributions in their lives after the Army.
Major General Crowder soon realized that, regardless of the quality of the twenty civilian attorneys given direct commissions as field grade officers, the JAGD needed more lawyers in uniform. As a result of this need, Congress passed legislation that authorized the appointment of Reserve and temporary captains and first lieutenants in the JAGD. By 2 December 1918, there were 426 judge advocates in the JAGD: thirty-five Regular Army Soldiers (one major general, four brigadier generals, thirteen colonels, and seventeen lieutenant colonels) and 391 in the Officers’ Reserve Corps and National Army (seven colonels, thirty-nine lieutenant colonels, 245 majors, sixty captains, and forty first lieutenants).9
Of the 426 attorneys who served in the JAGD between 1917 and 1919, the biographical details about the following nine individuals—ranging in rank from lieutenant to major general—are a representative sample of the larger group. What they did and where they did it also accurately reflects what it was like to serve as an Army lawyer during the war.
A fairly large number of judge advocates never went overseas and never saw combat. In this regard, they were no different from other Soldiers like Dwight D. Eisenhower, the future five-star general and U.S. president, who also remained stateside while others sailed to France.
The most senior Army lawyers worked in Washington D.C. Major General Enoch Herbert Crowder who, as the Judge Advocate General (tJAG) from 1911 to 1923, was the top Army lawyer, also served as Provost Marshal General in addition to his duties as tJAG.10
Born in a log cabin in Missouri in 1859, “Bert” Crowder obtained an appointment to West Point in 1877. After graduation in 1881, then Second Lieutenant Crowder joined the 8th Cavalry in Brownsville, Texas. During this tour, he studied law and was admitted to practice before the Texas bar in 1884.11
Crowder joined the JAGD as a captain in 1891, and was promoted to major four years later. At the end of the Spanish-American War in 1898, now Lieutenant Colonel (LTC) Crowder was in the Philippines. Over the next several years, he distinguished himself in a variety of assignments, including service on the Philippine Supreme Court. After a brief tour in Washington, D.C., LTC Crowder went to Japan, where he was the senior American observer with the Imperial Japanese Army during the Russo-Japanese War of 1904–1905.
In 1911, Crowder was promoted to major general and took the oath as tJAG. He initiated a number of new legal changes, including a revision of the Articles of War in 1916 and the publication of a new Manual for Courts-Martial. The outbreak of World War I, however, shifted MG Crowder’s focus away from military law and lawyers. In an unprecedented move, Secretary Baker appointed MG Crowder as the Army’s Provost Marshal General and put MG Crowder in charge of implementing the newly passed Selective Service Act, the first draft since the Civil War. This meant that MG Crowder was in charge of the Army’s transformation from a small professional all-volunteer force to a wartime Army consisting largely of civilian draftees. Starting in May 1917, MG Crowder supervised the registration, classification, and induction of over 2.8 million men. All male citizens between the ages of twenty-one and thirty years of age were required to register with local draft boards. These boards, administered by civilians, decided who would fill their quotas for the military and who would work in industry. Those drafted were required to serve for the duration of the war, with compulsory military service ending “four months after a proclamation of peace by the President.”12 Ultimately, MG Crowder’s efforts resulted in a dramatic metamorphosis in the Army: in April 1917, the Army consisted of two-thirds Regular Army Soldiers and one-third federalized National Guardsmen. When the fighting in Europe ended November 1918, the Army was seventy-seven percent National Army (draftees), ten percent National Guard, and thirteen percent Regular Army Soldiers. MG Crowder was so successful that he was offered a promotion to three-star rank in 1918. Uncomfortable with the idea of being a “swivel chair” lieutenant general, MG Crowder refused the promotion and instead—unsuccessfully—lobbied for a field command in France.
During the war, MG Crowder found himself, along with the entire military justice system, under attack for being “un-American.” After the trial of sixty-three alleged mutineers at Fort Sam Houston in November 1917, thirteen of the convicted men were sentenced to death and hanged before their records were examined by anybody, much less before the condemned men were given an opportunity to request clemency.13 In the public uproar that followed, Brigadier General Samuel T. Ansell, who was serving as the Acting tJAG while MG Crowder focused on implementing the Selective Service Act, charged that courts-martial were “patently defective” and needed immediate reform by Congress.
The ensuing controversy, known today as the Ansell-Crowder Dispute, focused chiefly on the proper role of the commander in the court-martial system. Ansell and his allies insisted that because military justice was almost wholly in the control of line officers without legal education and training, results at trial were frequently harsh, arbitrary, and capricious. They also complained that there was no system of appellate review; there was no appeal from a convening authority’s approval of a court’s findings and sentence. Had there been some sort of appellate process, insisted Ansell, the injustice of hanging convicted men without any opportunity for clemency or a thorough review of the court-martial record could have been avoided. Moreover, reforms were needed immediately—not later—as the Army was trying more and more general courts-martial: 6,200 in 1917 to over 20,000 in 1918.14
While Crowder vigorously defended the system against attacks by Ansell and others, he nonetheless recommended certain reforms to Congress. Ultimately, revisions to the Articles of War enacted in 1920 included greater protections for the accused. For the first time, the law required a pretrial investigation where the accused could offer evidence and witnesses. Another new feature was that all general courts-martial would have a “law member” detailed to them. This law member was required to be a member of the JAGD and, while he did not have powers akin to a judge in federal or state court, the law member ruled on interlocutory questions and instructed the court on the presumption of innocence and burden of proof. He also ruled on the admissibility of evidence; in this regard, his decisions were final. Finally, Congress required tJAG to create a board of review (consisting of at least three officers) who would review the records of trial for all sentences requiring presidential confirmation. These boards had previously been established by regulation; now they were required by statute.15
Another World War I Judge Advocate was Major (MAJ) Felix Frankfurter, the future Associate Justice of the U.S. Supreme Court. Born in Vienna, Austria, in 1882, Frankfurter came to America when he was twelve years old.
Although he spoke no English when his family arrived in New York, he was a brilliant student, and completed high school and college in a special program at the City College of New York in 1902. Frankfurter subsequently graduated first in his class at Harvard Law School in 1906.
Frankfurter worked as a civilian lawyer in the War Department before leaving Washington, D.C., to join Harvard’s law faculty in 1916. In early January 1917, with war on the horizon, then Professor Frankfurter accepted a direct commission to major in the Reserve Corps of the JAGD. After the U.S. entered World War I in April 1917, Frankfurter returned to Washington for duty in the Office of the Secretary of War where he served as Secretary of War Henry Stimson’s legal counsel.
He worked a variety of issues, including the legal status of conscientious objectors, and wartime relations with labor and industry. Major Frankfurter refused to wear a uniform while on active duty; he was close friends with tJAG Crowder and was apparently allowed to wear only civilian clothes during his time on active duty. In his memoirs, Frankfurter explained why:
The reason I didn’t want to go into uniform was because I knew enough about doings in the War Department to know that every pipsqueak Colonel would feel he was more important than a Major . . . As a civilian I would get into the presence of a General without saluting, clicking my heels, and having the Colonel outside say, “You wait. He’s got a Colonel in there.”16
After leaving active duty, Frankfurter continued a stellar career. He declined to be Solicitor General in 1933, but accepted President Roosevelt’s nomination to the U.S. Supreme Court in 1939. Frankfurter served as an associate justice until retiring in 1962.
In addition to Crowder and Frankfurter, MAJ Hugh S. Johnson also served exclusively in Washington, D.C. Johnson, who served as General John J. Pershing’s judge advocate during the Punitive Expedition into Mexico, later headed President Roosevelt’s National Recovery Act (NRA) during the Great Depression. His bluntness and colorful use of language while at the NRA, soon familiar to most Americans through its “blue eagle” symbol, also earned him the nickname “Iron Pants.” Johnson popularized words like “bunk,” “crack-down,” and “chisler”—words that are still part of the American lexicon.17
Born in Kansas in 1882, Johnson graduated from West Point in 1903. After his service with Pershing in Mexico, Johnson returned to Washington, D.C., where, in May 1917, he was made Deputy Provost Marshal General and tasked with helping to draft the regulatory framework that would implement the Selective Service Act. By 1918, Johnson was a brigadier general and in charge of the Army’s Purchase and Supply Branch. According to the U.S. Army’s Center of Military History, Johnson was “brilliant, young, impatient, and abrasive” and soon in “hot water with many of his military colleagues, including the Chief of Staff.”18 Johnson left the job “disgruntled,” but with a clear understanding of how government bureaucracy worked. He also had acquired a reputation as a problem-solver and became a successful businessman and was part-owner of a farm tractor manufacturing company in the 1920s.
John Baker White never got to France—or Germany—but he did deploy to England as the “Judge Advocate, Base Section No. 3, American Troops in England” in January 1918. Born in Romney, West Virginia, in 1869, White’s formal education ended when he graduated from high school. But, as did many men of his day, White “studied law” with a law firm in Charleston, West Virginia, and, when he felt ready, took the Supreme Court of Appeals examination to be a lawyer and passed the Bar in 1897.19
According to the biographical questionnaire that White submitted to the JAGD in February 1919, he served in the West Virginia National Guard from 1888 to 1897, and in the 1st West Virginia Volunteers during the War with Spain.20 After being appointed a judge advocate in the U.S. National Guard in December 1917, White travelled by rail to Hoboken, New Jersey, and by ship to Liverpool, England, on Christmas Eve. When he arrived on British soil, he took the train to London and took up residence at the Belgrave Mansion Hotel, Grosvenor Gardens. At fifty years of age, then MAJ White was certainly one of the most senior Army lawyers in England.
For the next year, White worked closely with British authorities in crafting legislation that would give the United States criminal jurisdiction over its own troops. Ultimately, White was the principal author of the entire law, which was titled, “Discipline of Forces of Her Majesty’s Allies in the United Kingdom.”21 It permitted “the naval and military authorities and courts of an Ally” on British soil to exercise “all such powers as are conferred on them by the law of that Ally.”22 In other words, if U.S. military law authorized the Army to prosecute Soldiers stationed in the United Kingdom (U.K.), the British authorities had no objection. In fact, the law directed British authorities to order any non-U.S. citizen (provided the U.S. government paid his or her travel expenses) to appear “as a witness and give evidence” at any U.S. military criminal proceeding. From the American perspective, this legislation was key to maintaining good order and discipline over U.S. troops in England. Since, under international law, American soldiers were in England at the invitation of the British, the U.K. authorities could have insisted that they alone had jurisdiction over U.S. troops. It follows that White’s legislation, which formalized a British willingness to give up this sovereign power and permit foreign military courts to hold proceedings was an important legal event. American commanders in the U.K. had the power to discipline law breakers, and White’s work demonstrated how the law could be used to enhance mission success. Being able to exercise criminal jurisdiction over American uniformed personnel stationed overseas continues to be so important that Army lawyers today—working closely with the State Department—continue to be involved in negotiating the Status of Forces Agreements containing provisions like those authored by MAJ White.23
While Crowder, Frankfurter, and Johnson toiled on U.S. soil, and White worked in England, Army lawyers like Burnett M. Chiperfield, J. Leslie Kinkaid, Adam E. Patterson, and Blanton Winship served with distinction in the AEF in France.
Burnett M. Chiperfield, like other judge advocates, was asked to fill out a one-page questionnaire on his service during World War I. Chiperfield, however, submitted a single-spaced, three and one-half page typed resume of his career despite thinking “that whatever I have done [during the war] was better known to the Judge Advocate General’s Department than even to myself.”24
Born in Dover, Illinois, in 1870, Chiperfield was educated at Hamline University in St. Paul, Minnesota. During the Spanish-American War, he served as a lieutenant in the First Illinois Cavalry. After the war, he remained in the Illinois National Guard and, as a lawyer, served as a judge advocate in the early years of the 20th century. Chiperfield retired as a Guard colonel in 1916 and transferred to the National Guard Reserve. The year before, he had been elected to serve in the House of Representatives and, as he did not run for reelection, ended his service as a congressman in March 1917.25
Two months later, having volunteered for active duty with the JAGD, Chiperfield was ordered to active duty as a major. He was sent to Springfield, Illinois, where he assisted in Illinois in the implementation of the new Selective Service Act in that state. According to Chiperfield, he “helped perfect the plans for the operations of the selective draft, assisted in the preparation of forms to be used, and wrote some of the literature for the use of the various draft boards.”26
Almost a year later, in April 1918, Chiperfield sailed to France as the judge advocate for the 33rd (Illinois) Division.27 While a lawyer ordinarily would set up shop in a rear area far away from the dangers of the battlefield, Chiperfield did not. On the contrary, he “was always with the division headquarters at the front,” and served as Division Liaison Officer between the 33rd and nearby British and French units.28 In his own words, Chiperfield “was continuously with the active troops, and shared with them the common hazards of their position” at Hamel, Chipelly, Gressaire Woods, and on both banks for the Meuse River during the Meuse-Argonnne offensive.29
Chiperfield was not boasting, as Brigadier General W. K. Naylor, the Chief of Staff of the 33rd Division, commended him for both his legal advice and work as a liaison officer. “Your desire for service ‘up at the front,’” wrote Naylor, “notwithstanding the fact that your legitimate duties did not require you to go there, was greatly appreciated by me.”30 Naylor continued:
It adds greatly to the Chief of Staff’s feeling of security and peace of mind to know that he has dependable men as liaison agents. It precludes the possibility of losing touch, and it is one of the most important, and I might say, at times, one of the most dangerous duties.31
The Commanding General of the 33rd Division likewise praised Chiperfield when he wrote that his “conduct has been an inspiring example to other men.”32 Given these accolades, it should come as no surprise that the War Department awarded the Distinguished Service Medal to MAJ Chiperfield for his exceptionally meritorious service while serving as Division Judge Advocate. According to the official citation, Chiperfield “performed duty of great responsibility beyond that required” of an Army lawyer. “Constantly under hostile artillery fire, he kept his Division Commander thoroughly informed for the situation . . . going voluntarily and frequently to the front line for information and on several occasions opening serious and extensive traffic blocks under shell fire.”33
Chiperfield remained in Europe after the armistice and served as the “Judge Advocate General” [sic] for the 3d Army Corps during its occupation of Cloblenz, Germany. In this assignment, Chiperfield served as a one-man “Superior Provost Court” and “conducted the trial of all important cases . . . of German civilian offenders.”34 He also “inaugurated the system of the management of Civil Affairs for that part of Germany occupied by the 3d Army Corps.”35 This meant that he organized American military supervision of all cities and political units in the U.S. sector, including the administration of German civil law. Not only was Chiperfield successful in his civil affairs operations (“he received the thanks of the German civil officials”36), but the system that he created was applied and copied by other Army organizations.
Like Chiperfield, J. Leslie Kincaid showed that he could contribute more to the AEF than his skills as a lawyer. Born in New York in 1884, Kincaid grew up in Syracuse, where he attended high school and obtained his law degree from Syracuse University in 1906. He was admitted to the Bar of New York in 1907. Like many men of his era, Kincaid had joined the state’s National Guard while still in college; at age 19, he enlisted as a cavalry private. He continued to soldier, and, from June to December 1916, was serving on the Mexican border as the Judge Advocate for the 6th Division. Kincaid’s public service during these years also included being active in state politics; he served as a member of the New York Assembly from 1915 to 1916.
Kincaid sailed for France in 1918 and was assigned to the 27th “New York” Division as its judge advocate. In addition to providing legal advice, MAJ Kincaid also proved that he was a warrior. During operations near Ronssoy, France, from September 28, Kincaid volunteered to take command of a battalion of the 106th Infantry Regiment because of the shortage of line officers on duty. According to his military records, he led the battalion throughout the fighting, demonstrating “courage and forcefulness without regard to his personal safety, thereby setting a splendid example for all ranks.”37 On one occasion, Kincaid spotted a force of sixty to eighty Germans counter-attacking on his left. Knowing that there was no reserve force to deploy against this German assault, Kincaid “promptly organized his Battalion headquarters runners, signalmen, and some stragglers, and attacked [the Germans] and drove them back.”38 Kincaid himself manned a machine gun during the fighting.39
For his bravery under fire and exemplary service in uniform, Kincaid was awarded the Army Distinguished Service Cross, the Belgian Order of the Crown, and the British Distinguished Service Order. No Army lawyer was more highly decorated in World War I.40
As an African-American lawyer, Adam E. Patterson was a rarity from the moment that he joined the Army in 1917. Born in Walthall, Mississippi, in 1876, he attended high school in Kansas City, Kansas, and Pueblo, Colorado. After graduating in 1897, Patterson began studying law at Kansas State University; he earned his LL.B. in 1900.
Patterson then practiced law in Cairo, Illinois, and Muskogee, Oklahoma, before moving to Chicago. According to his questionnaire on file in the National Archives, Patterson “tried an important case” with the famous lawyer, Clarence Darrow.41
Patterson was also involved in local, state, and national politics. In 1916, he “managed the national campaign for the Democratic Party among colored voters” and subsequently was president of the National Colored Democratic League.42 Patterson was closely associated with Oscar DePriest, a prominent African-American alderman in Chicago.43
Patterson joined the Army shortly after American’s declaration of war in April 1917, and spent ten months as an Infantry captain at Camp Dodge, Iowa. After the 92nd “Buffalo” Division—an all-black unit consisting of draftees from across the U.S.—was organized in the AEF, General John J. Pershing appointed Patterson as the 92nd’s Division Judge Advocate.
After arriving in France and joining his unit, Patterson “personally handled all offenses committed by Soldiers, from absence without leave to murder.” 44 No doubt in recognition of his fine work, General Pershing approved Patterson’s promotion to major on 5 October 1918. Patterson made history as the first African-American lawyer to serve in the JAGD and one of only a handful of black officers to reach field-grade rank.
Colonel Blanton Winship was a career judge advocate who also proved his value as a combat leader. Born in Georgia in 1869, Winship obtained his A.B. degree from Mercer in 1889. He was awarded a bachelor of laws degree from the University of Georgia in 1893 and subsequently practiced law in his home state. The surge of patriotism that accompanied the outbreak of the Spanish-American War prompted Winship to join the U.S. Volunteers as a captain of the 1st Georgia Infantry. After three years of fighting in the Philippines, he obtained a commission as an officer in the Regular Army and was soon an acting judge advocate. By 1904, Winship had transferred to the JAGD and held the rank of major.45
Winship served in legal positions of increasing responsibility until 1914, when he began teaching law at the Army Service School, Fort Leavenworth, Kansas. In December 1917, he sailed for France where American troops were belatedly joining the war that had been raging in Europe since 1914. Promoted to colonel while in the AEF, Winship apparently held three jobs simultaneously: Judge Advocate, First Army; Commander, 110th Infantry Regiment; and Commander, 118th Infantry Regiment. Both regiments were part of the 28th Division and fought in some of the war’s major operations, including Champagne-Marne, Aisne-Marne, and Saint-Mihiel.46
Winship received the Distinguished Service Cross—second only to the Medal of Honor—for his “extraordinary heroism in action near Lacheussee, France, on November 9, 1918,” just two days before the armistice that ended combat operations.47 The official citation reads:
While commanding his regiment and observing from his outpost line the progress of a daylight raid on the enemy by a detachment of his officers and men, he discovered the enemy enveloping the right flank of the raiding party. Hastily collecting and organizing a small party from the few available men, he, regardless of his own safety, personally led them forward under heavy rifle, machine-gun, and shell fire, and covered the exposed flank, advancing over a deep tank obstruction and through enemy wire to their second line, destroying several machine guns and killing many of the enemy. His prompt and fearless action enabled the main raiding party to accomplish its mission, and his personal conduct was a great inspiration to his officers and men and contributed largely to the success of the raid.48
Winship’s post-World War I legal achievements, including duty as tJAG from 1931 to 1933 were overshadowed by his subsequent assignments. After leaving active duty in 1933, Winship was appointed the governor of Puerto Rico in 1934, which was widely viewed as a move by President Franklin D. Roosevelt to quell militant sentiment for Puerto Rican independence. Ultimately, Winship’s tenure as governor (which lasted until 1939), was a sore point for many men and women on the island, especially when he ordered police to put down a Nationalist Party of Puerto Rico rally for independence in the city of Ponce on 21 March 1937. In what some call the Ponce Massacre, police fired on the crowd, killing between twenty and twenty-two people (according to differing accounts) and wounding about 120. While there are still Puerto Ricans who desire independence from the U.S., Congress granted U.S. citizenship to all inhabitants of the island in 1940.49
Winship was recalled to active duty during World War II. He served as one of the seven members of the military commission created by President Roosevelt in 1942 to try Nazi saboteurs arrested in the U.S. The event, and the Supreme Court decision of In re Quirin, are frequently cited as precedent for the on-going trials of alleged terrorists at Guantanamo Bay, Cuba. When he retired in 1944 at age seventy-five, Winship was the oldest Army officer on active duty. He died in Washington, D.C., in 1947.
After the Armistice in November 1918, most judge advocates returned to civilian life and the civilian practice of law. A small number, however, like MAJ Matthew H. Allen, deployed to Germany to serve with the Army of Occupation. Born in Kenensville, North Carolina, in 1884, Allen graduated from the University of North Carolina’s law school in 1906 and was admitted to the North Carolina State Bar that same year. Over the next ten years, Allen practiced law in Goldsboro and New Bern, North Carolina. Then, after America entered the war on the Allied side, Allen joined the Officers’ Reserve Corps in May 1917. After serving briefly as a captain in the 113th Field Artillery Regiment, Allen was commissioned as a major in the JAG Reserve Corps and was assigned as the Assistant Judge Advocate, 31st Division, located at Camp Wheeler, Georgia.
On 16 November 1918, MAJ Allen was ordered to report to the Army’s 3rd Division, and he sailed for Europe. In January 1919, Allen was appointed “Superior Provost Court for the Kreis of Mayen,” with duty in Andernach, Germany. According to official records, this made him a one-person supervisor for forty-four inferior Provost Courts. Allen also had “general supervision of the administration of ‘War Laws’” in the territory around Mayen, which was then occupied by the 3rd Division.50
Major Allen filed a report in March 1919, in which he detailed the “nature and extent” of his work.51 According to this document, a total of 320 trials were held. Two hundred eighty six persons were convicted and 100 imprisoned. Additionally, 25,600 Marks were collected in fines. The offenses of the 286 convicted defendants varied:
- Selling wines and liquor 40
- Preaching propaganda 2
- Circulating false rumors 4
- Possession of firearms 12
- Possession of American goods 12
- Failure to carry identification cards 96
- Larceny of American goods 14
- Disobedience of military orders 15
- Selling food to Americans 9
- Prostitutes and venereal disease 42
- Miscellaneous, minor offenses 40
In the context of the times, the Army’s ban on selling wine and alcohol in the occupied territory makes sense; after all, at home, the Eighteenth Amendment’s prohibition on alcoholic beverages came into effect in January 1920 and lasted for the next thirteen years. But note that selling beer in the occupied territory was not prohibited—almost certainly a recognition that depriving Germans of beer would be both impossible and ill-advised.
In addition to his criminal law duties, Allen also was tasked with investigating “all claims for property damage or personal injury submitted by civilian enemies.”52 This claims responsibility meant that Allen examined the claims filed by Germans against the U.S. for damage to their property or injury to themselves caused or committed by U.S. troops. Just as today, the Army paid these claims after a thorough investigation.53
Judge advocates in World War I demonstrated that they were both superb lawyers and outstanding Soldiers. Since the entire JAGD consisted of slightly more than 400 men out of a total Army of 3.7 million, it is not an overstatement to stress that these Army lawyers made contributions greatly disproportionate to their numbers.
Crowder’s implementation of the Selective Service Act of 1917 was critical to the success of the entire American war effort. Frankfurter’s work as legal counsel to Secretary of War Stimson similarly meant that a judge advocate was contributing to the Army at the highest level.
Outside Washington, D.C., White’s efforts in London helped maintain good order and discipline among U.S. troops in England. Chiperfield’s work as a liaison officer at the front in France, and the extraordinary heroism of Kincaid and Winship, likewise showed how uniformed attorneys could enhance mission success in non-legal ways.
Finally, the challenges faced by Patterson as the first African-American lawyer to serve in the JAGD deserve special mention. In a period where Jim Crow reigned in the South and men and women of color faced discrimination as a matter of routine, Patterson’s service in the 92nd Division demonstrated that African-Americans merited an expanded role in the U.S. Army.
While this article has only touched on the experiences of a handful of the Army lawyers who served in World War I, the story of these judge advocates—who they were, what they did, and where they did it—should not be forgotten as we commemorate the 100th anniversary of the end of World War I. TAL
1. David Trask, The Entry of the USA into the War and its Effects, in World War I: A History 239, 245 (Hew Strachan ed., 1998) [hereinafter Trask].
2. For more on the AEF in World War I, see Richard S. Faulkner, Pershing’s Crusaders: The American Soldier in World War I (2017).
3. James Brown Scott, Judge Advocates in the Army, 11 Am. J. Int’l L. 650, 650 (1917).
4. Judge Advocate General’s Corps, U.S. Army, The Army Lawyer: A History of the Judge Advocate General’s Corps, 1775–1975 116 (1975) [hereinafter The Army Lawyer].
5. Trask, supra note 1, at 651.
8. While he could have served in the JAGD, Gaspar Griswold Bacon (1886–1947) decided instead to serve as a Field Artillery officer during World War I. He was a member of the 81st Division and left active duty as a major. During World War II, Bacon obtained a commission as a major in the Army Air Forces and took part in the D-Day landings in Normandy on 6 June 1944. He was honorably discharged as a colonel in 1945. Parkman Dexter Howe, Gaspar Griswold Bacon, Proceedings of the Massachusetts Historical Society 426–428 (Oct. 1947–May 1950).
9. Faulkner, supra note 2. For a comprehensive study of Crowder and the JAGD in World War I, see Joshua E. Kastenberg, To Raise and Discipline an Army: Major General Enoch H. Crowder, the Judge Advocate General’s Office, and the Realignment of Civil and Military Relations in World War I (2017).
10. Prior to 31 January 1924, the top uniformed lawyer in the Army was “the Judge Advocate General.” On that day, however, War Department General Order No. 2, announced that the position would now be known as “The Judge Advocate General.”
11. For more on Crowder, see David A. Lockmiller & Lewis B. Hershey, Enoch H. Crowder: Soldier, Lawyer, and Statesman (1955). See also, Fred L. Borch, The Greatest Judge Advocate in History? The Extraordinary Life of Major General Enoch H. Crowder (1859–1932), Army Law., May 2012, at 1–3.
12. Bernard Rostker, I Want You!: The Evolution of the All-Volunteer Force 24 (2006). For more on the draft in World War I, see Gerald Shenk, Work or Fight!: Race, Gender, and the Draft in the World War One (2005). See also, George Q. Flynn, The Draft, 1940–1973 (1993).
13. For more on the trials arising out of the Houston Riots, see John Minton, The Houston Riot and Courts-Martial of 1917 (1990). See also, Garna L. Christian, Black Soldiers in Jim Crow Texas, 1899–1917 (1995).
14. The Army Lawyer, supra note 4, at 105.
15. For more on controversy over reforming the Articles of War, see Terry W. Brown, The Crowder-Ansell Dispute: The Emergence of General Samuel T. Ansell, 35 Mil. L. Rev. 1 (1967) [hereinafter Crowder-Ansell Dispute]. As for Crowder, he retired from active duty in 1923, after 46 years of service. Major General Crowder then topped off his remarkable career as a soldier by immediately accepting an appointment as the first U.S. Ambassador to Cuba, a post he held until he left Havana in 1927. He died in 1932.
16. The Army Lawyer, supra note 4, at 118. For a short biography of Frankfurter, see Melvin I. Urofsky, Felix Frankfurter: Judicial Restraint and Individual Liberties (1991).
17. For more on Johnson’s tenure at the NRA, see Hugh S. Johnson, Man of the Year, Time, Jan. 1, 1934.
19. Questionnaire for the Judge Advocates Record of the War, John Baker White, National Archives and Records Administration (NARA), Washington, D.C., Record Group 153, Records of the Office of the Judge Advocate General, Entry 45, Box 1.
24. Questionnaire for the Judge Advocates Record of the War, Burnett M. Chiperfield, NARA, Washington, D.C., Record Group 153, Records of the Office of the Judge Advocate General, Entry 45, Box 1 [hereinafter Chiperfield Questionnaire].
25. Search for Burnett Chiperfield, Biographical directory of the United States Congress, http://bioguide.congress.gov.
27. For more on the 33rd Division in World War I, see Frederic L. Huidekoper, The History of the 33rd Division A.E.F. (1921).
28. Chiperfield Questionnaire, supra note 24.
31. Search for Burnett Chiperfield, Biographical directory of the United States Congress, http://bioguide.congress.gov.
32. Chiperfield Questionnaire, supra note 24.
33. Search for Burnett Chiperfield, Biographical directory of the United States Congress, http://bioguide.congress.gov.
34. Chiperfield Questionnaire, supra note 24.
35. Chiperfield Questionnaire, supra note 24.
36. Chiperfield Questionnaire, supra note 24.
37. Questionnaire for the Judge Advocates Record of the War, J. Leslie Kincaid, NARA, Washington, D.C., Record Group 153, Records of the Office of the Judge Advocate General, Entry 45, Box 3.
40. Only one other judge advocate was awarded the Army Distinguished Service Cross for extraordinary heroism in World War I. This was then COL Blanton Winship (discussed infra) who, like Kincaid, earned the decoration while in command of a line unit. Winship would later serve as the Judge Advocate General (tJAG) from 1931 to 1933.
41. Clarence S. Darrow (1857–1938) was a criminal defense lawyer known for his eloquence. He is perhaps best known for representing the teenaged killers Leopold and Loeb in 1924 and John T. Scopes in the so-called Scopes Monkey Trial in 1925.
42. Questionnaire for the Judge Advocates Record of the War, Adam E. Patterson, NARA, Washington, D.C., Record Group 153, Records of the Office of the Judge Advocate General, Entry 45, Box 4 [hereinafter Patterson Questionnaire].
43. Oscar DePriest (1871–1951) was a prominent black leader in Chicago in the early years of the last century. He was elected alderman of Chicago’s second ward in 1915, becoming the first African-American elected to the city council of Chicago. In 1928, DePriest became the first black to win a seat in the U.S. House of Representatives in the 20th century.
44. Patterson Questionnaire, supra note 42.
45. The Army Lawyer, supra note 4, at 149-51.
47. War Department, General Order No. 9, 1923.
49. Marie G. Pietrantoni, Blanton Winship Governor of Puerto Rico: A Study of His Gubernatorial Administration 1934-1939, 132-169 (2016).
50. Questionnaire for the Judge Advocates Record of the War, Matthew H. Allen, NARA, Washington, D.C., Record Group 153, Records of the Office of the Judge Advocate General, Entry 45, Box 1.