The Cornell Law Quarterly

Volume V

NOVEMBER, 1919

Number

ARD LIBRARY

Military Justice

BY S. T. ANSELL1

I contend-and I have gratifying evidence of support not only from the public generally but from the profession-that the existing system of Military Justice is un-American, having come to us by inheritance and rather witless adoption out of a system of government which we regard as fundamentally intolerable; that it is archaic, belonging as it does to an age when armies were but bodies of armed retainers and bands of mercenaries; that it is a system arising out of and regulated by the mere power of Military Command rather than Law; and that it has ever resulted, as it must ever result, in such injustice as to crush the spirit of the individual subjected to it, shock the public conscience and alienate public esteem and affection from the Army that insists upon maintaining it. Intemperate criticism of those who have pointed out these defects will not serve to conceal them.

It is conceded that, basically, our system is the British system as it existed at the time of the separation, which itself was of much more ancient origin. At that time one theory political and legal prevailed as to the place an Army should occupy as an institution of government. With the birth of our government, however, came the new political theory of popular sovereignty even over the Army, though unhappily our military code reflects the principles we repudiated. The basic deficiency of our system this day is to be found in the fact that our fundamental law and public opinion contemplate justice regulated by the law, whereas the Military Code and the Army recognize only such justice as Military Command may dispense. Under the one theory the Army is the Army of the King or, with us,

"Of the Washington, D. C., bar, and formerly acting Judge Advocate General, U. S. A.

Though seasonably invited by the Quarterly to prepare this article, I could find no opportunity to do so, and therefore at first declined. At the kindly instance of the editors, I have undertaken to write now on the very last day that permits of publication in this issue. I regret that a hurried preparation must result in the ineffective presentation of a subject which deserves the best thought and consideration of our profession.

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