For some years before the establishment of the Office of the Judge Advocate General of the Navy, other officials performed legal duties for the Department of the Navy. Prior to the Civil War, Secretaries of the Navy had been obliged to obtain legal advice from whatever sources they could. The incorrect interpretation of statutes resulting from this practice sometimes caused naval officers, acting upon orders of the Secretary of the Navy, to become involved in legal suits for damages.
The great increase in the legal business of the Navy Department during the Civil War resulted in the appointment of the first legal officers in that department. Secretary of the Navy Gideon Welles appointed Nathaniel Wilson Solicitor for the Navy Department in 1864, as a result of the discovery of frauds in connection with naval war contracts. By Act of March 2, 1865, authority was given the President to appoint “for service during the Rebellion and one year thereafter an officer in the Navy Department, to be called the Solicitor and Naval Judge Advocate General.” Four days later, President Lincoln appointed William E. Chandler, of New Hampshire, to the position. He was soon succeeded, however, by another civilian, John A. Bolles, of Massachusetts, who had served during the three preceding years as judge advocate on the staff of General John A. Dix. The office was continued thereafter by annual appropriation acts.
In the appropriation act of July 20, 1868, however, provision was made for the office only until March 4,1869, when it was to cease to exist, until regularly established by law. Although no such law was passed, it was again provided for in the deficiency appropriation act of March 3, 1869.
The creation of a solicitor’s office in the Navy Department was in line with the development of such offices in other departments of the government. These offices included the Solicitor of the Treasury, Solicitor of the War Department, Post Office Solicitor, Solicitor of Internal Revenue, and the Examiner of Claims in the State Department.
The increased legal business of the government during and after the Civil War, the confusion arising from the existence of so many different law officers in the government, and the expense incurred in the employment of outside counsel to handle the excessive work, resulted in a movement in Congress in 1867 for the centralization of the legal work of the government in a Department of Justice. By act of Congress of June 22, 1870, this department was created under the Attorney General. The third section of this act provided that the various solicitors in the departments of the government, including the Solicitor and Naval Judge Advocate General, who was thereafter to be known as the Naval Solicitor, were to be transferred to the Department of Justice, under the supervision and control of the head of which they were to execute their functions.
Mr. Bolles filled the position of Naval Solicitor until his death on May 25, 1878. Section 349 of the Revised Statutes of 1874, insofar as it provided for the Naval Solicitor in the Department of Justice, was repealed by the appropriation act of June 19,1878, and the office was abolished effective June 30, 1878.
Legal duties in the Navy Department then devolved upon Captain William B. Remey, U. S. Marine Corps, who was detailed by the Secretary of the Navy as Acting Judge Advocate. According to the Navy Department circular of July 2,1878, this officer was charged with the duty of reporting upon all matters submitted to the Secretary of the Navy involving questions of law and regulations, and with the duty of reviewing the findings of Summary and General Courts-Martial, and Examining and Retiring Boards.
Chiefly through the efforts of Captain Remey, an Act of Congress was passed on June 8, 1880, creating the Office of the Judge Advocate General. The President was authorized to appoint for a term of four years, by and with the advice and consent of the Senate, from the Officers of the Navy or the U. S. Marine Corps, a Judge Advocate General of the Navy, who was to have the rank, pay, and allowances of a Captain in the Navy or a Colonel in the Marine Corps. By this Act, the Judge Advocate General, under the direction of the Secretary of the Navy, was to “receive and revise, and have recorded the proceedings of all courts-martial, courts of inquiry and boards for the examination of officers for retirement and promotion in the naval service, and perform such other duties as have heretofore been performed by the solicitor and naval judge-advocate general.” The effect of this act was to definitely place all legal business of the Navy Department in one office and to establish the Judge Advocate General as the legal adviser of the Department. Captain Remey was appointed to the position of Judge Advocate General, which he continued to fill until 1892.
The duties of the Judge Advocate General were prescribed in a circular issued June 28,1880, and the creation of the office was announced to the service in General Order No. 250 of the same date. These practically repeated the circular of 1878 and the act of 1880. The records of all courts and boards were henceforth to be forwarded direct to the Office of the Judge Advocate General for filing. Hitherto these had been handled by the Bureau of Navigation.
As the duties of the Office of the Judge Advocate General have been amplified, they have been set forth in various editions of Navy Regulations. Not long after the establishment of the office of the Judge Advocate General, an extensive naval expansion program was undertaken. The department correspondence connected therewith, relating to advertisements, proposals, contracts, bonds, insurance, plans, and specifications, was handled by the Office of the Judge Advocate General. Other duties that fell to this office were the control of naval prisons and disciplinary barracks, the examination of bonds of pay officers, and questions relating to the pay and traveling expenses of officers, and the interpretation of the meaning and construction of regulations of the Navy.
The increase in the size of the Office of the Judge Advocate General, resulting from an ever expanding Navy, eventually caused the organization of divisions within the office. A beginning towards the establishment of divisions was made in 1916, when the work was reported upon under the following six headings: (1) Administration of Justice; (2) Officers’ Records; (3) Legislation; (4) Legal Questions, Opinions, and Decisions; (5) International Law; and (6) Miscellaneous. By 1922 an organization consisting of 4 major divisions and 21 sections had been formed. The divisions were: (1) Administration of Justice; (2) Officers’ Records and International Law; (3) Miscellaneous Legal Matters; and (4) Contract and Real Estate Matters. Some transfers of sections among the divisions occurred in 1923, and Division 3 received the designation: Administrative and Admiralty Law. In the same year cognizance of matters relating to patents and inventions was transferred from the Bureau of Engineering, together with pertinent files and correspondence. To care for this new work, the Patent Section (Section 5) was added to Division 4.
To simplify office procedure and to facilitate the performance of duties, a reorganization occurred in the Office of the Judge Advocate General in 1928. Division 2 (Officers’ Records and International Law) was abolished, and its duties were assigned to the other divisions, reducing the number of divisions from four to three. Division 3 became Division 2, and Division 4 became Division 3. At this time the position of Assistant Chief, in what had been Division 3, was discontinued, and the new position of Consulting Attorney, filled by a civilian, was created to perform duties for the whole office.
The work of the Patent Section was considerably increased by the passage of the Settlement of War Claims Act of 1928. Under this Act, the Patent Section was charged with collecting information regarding the use by the Navy Department of patents that were seized by the Alien Property Custodian during the World War. For several years the Section collaborated with the Department of Justice in the defense of the Government before the War Claims Arbiter. The Patent Section was included in a re-established Division 4: Patents, Trade Marks, and Copyrights, on July 1, 1933.
Office of the Solicitor
For some years after its creation, the office of Solicitor was a part of the Office of the Judge Advocate General. It was established on July 1, 1900, by the annual Appropriation Act of April 17, 1900, and it was continued thereafter by other appropriation acts. The appointment of the Solicitor was recommended by the Secretary of the Navy to serve as an assistant to the Judge Advocate General, whose business had been increasing.
The Solicitor remained subordinate to the Judge Advocate General until November 1, 1907, when Secretary of the Navy Victor H. Metcalf, believing that certain matters of a nonmilitary character pertaining to contracts, bonds, real estate, claims, etc., could be handled by a civilian, ordered the division of the duties of the Office of the Judge Advocate General. According to this division, which was made part of the Appropriation Act of May 22, 1908, by which it became legally effective July 1, 1908, the nonmilitary duties came to be performed by the Solicitor. Secretary Metcalf was further influenced by the feeling that the work brought before the Judge Advocate General was too much for one person to handle properly. The Solicitor was to perform the duties of the Judge Advocate General in case that officer could not serve.
The separation of the Office of the Solicitor from the authority of the Judge Advocate General did not meet with the approval of the latter, and efforts were soon made to restore the old arrangement. Judge Advocate General Edward H. Campbell pointed out in a memorandum to the Secretary of the Navy dated April 22, 1909, that by statute all the legal duties of the Navy Department were to be performed by the Office of the Judge Advocate General, and recommended the consolidation of the Offices of the Judge Advocate General and of the Solicitor. He indicated what he believed to be the disadvantages in having two legal offices in the Navy Department, but the Navy Regulations published that year definitely assigned the nonmilitary business of the Navy Department to the Solicitor. In the same year this officer was made subordinate to the Assistant Secretary of the Navy in a move to relieve the Secretary of the Navy of some of the details of the business of the department.
The duties of the Judge Advocate General and of the Solicitor were prescribed as follows in the Navy Regulations of 1909:
(1) The duties of the Judge Advocate General of the Navy shall be as follows: To revise, report upon, and have recorded the proceedings of all courts-martial, courts of inquiry, boards of investigation, inquest, and boards for the examination of officers for retirement and promotion in the naval service; to prepare charges and specifications for courts-martial, and the necessary orders convening courts-martial, in cases where such courts are ordered by the Secretary of the Navy; to prepare general orders promulgating the final action of the reviewing authority in court-martial cases; to prepare the necessary orders convening courts of inquiry and boards for the examination of officers for promotion and retirement, and for the examination of candidates for appointment as commissioned officers in the Navy other than midshipmen, and to conduct all official correspondence relating to such courts and boards.
(2) It shall also be the duty of the Judge Advocate General to examine and report upon all questions relating to the construction of the regulations, including those relating to rank and precedence, promotions and retirements, and those relating to the validity of the proceedings in court- martial cases; all matters relating to the supervision and control of naval prisons and prisoners; the removal of the mark of desertion; the correction of records of service and reporting thereupon in the regular or volunteer navy; certification of discharge in true name; pardons; bills and resolutions introduced in Congress relating to the personnel and referred to the Department for report; references to the Comptroller of the Treasury with regard to pay and allowances of the personnel; questions involving points of law concerning the personnel; and to conduct the correspondence respecting the foregoing duties.
(1) It shall be the duty of the Solicitor to examine and report upon questions of law, including the drafting and interpretations of statutes, and matters submitted to the accounting officers, not relating to the personnel; preparation of advertisements, proposals, and contracts; insurance; patents; the sufficiency of official, contract, and other bonds and guarantees; acquisition of and questions affecting lands, proceedings in the civil courts by or against the Government or its officers; claims by or against the Government; questions submitted to the Attorney-General; bills and Congressional resolutions and inquiries not relating to the personnel and not elsewhere assigned; and to conduct the correspondence respecting the foregoing duties. Opinions relating to the personnel shall, when received, be referred by the Solicitor to the Bureau of Navigation via the Office of the Judge Advocate General.
(2) He shall be charged under the special instructions of the Secretary of the Navy with the purchase, sale, transfer, and other questions affecting lands and buildings pertaining to the Navy, and with the care and preservation of all muniments of title to land acquired for naval uses.
(3) He shall also render opinion upon any matter or question of law when directed to do so by the Secretary of the Navy.
Some additions to the duties of the Solicitor occurred prior to the World War. In 1910 matters pertaining to the sale of condemned vessels of the Navy were placed in his charge. On May 28, 1913, the muniments of title to land acquired for naval use were transferred from the Bureau of Yards and Docks to the Office of the Solicitor.
So much confusion arose in the conduct of the government’s legal work during the World War through the creation of new legal offices and the uncontrolled functioning of the departmental solicitors that the President’s attention was drawn to the situation. Under the terms of the Overman Act authorizing him to co-ordinate and consolidate the work of the agencies of the government, President Wilson issued an executive order on May 31,1918, by which the Office of the Solicitor in the Navy Department was transferred, together with the offices of solicitors in other government agencies, to the control of the Department of Justice. The Office of the Judge Advocate General in the Navy was not affected by this order. Actually the issuance of this order had little effect, for the Solicitor remained in the Navy Department and continued to function as before.
While the war was still in progress, the Judge Advocate General had recommended to the Chief of Naval Operations that the Navy Regulations be changed so that the Judge Advocate General, according to the statute creating his office, would have cognizance over all matters of law arising in the Navy Department, and make the Solicitor subordinate to the Judge Advocate General. The consolidation of the Offices of the Judge Advocate General and of the Solicitor was finally effected by changes in Navy Regulations numbers 393, 399, 469, and 470, approved by the President on August 29, 1921, effective September 1. The new regulations gave the Judge Advocate General cognizance of all matters of law arising in the Navy Department and directed that the Solicitor should perform such duties as were assigned to him by the Judge Advocate General. The Appropriation Act of July 1, 1922, contained a provision for the Solicitor’s Office, and the Appropriation Act of January 22, 1923, contained an appropriation for the Solicitor under the heading, Office of the Judge Advocate General. Thereafter no funds were provided for the Solicitor, and the office was not included in the Classification Act of that year. The title of Solicitor, however, appeared in the Official Register for several years longer, and after 1925 in conjunction with that of Chief of the Division of Contract and Real Estate Matters. Since 1928 the position has been merged with that of the Chief of that Division, and the use of the title of Solicitor was then discontinued.
So soon as the defensive ceases to be regarded as a means of fostering power to strike and of reducing the enemy's power of attack it loses all its strength. It ceases to be even a suspended activity and anything that is not activity is not war. —Corbett, Maritime Strategy.