Judicial Functions for the Commander
![handle is hein.journals/milrv41 and id is 5 raw text is: JUDICIAL FUNCTIONS FOR THE COMMANDER?*
By Major Donald W. Hansen
This article examines in depth the historic relationship
between the commander and the military justice system.
The author considers the relation that the commander's
exercise of judicial functions bears to his responsibility for
maintaining good order and discipline in the command,
and whether this current relationship is so tenuous as to
justify removing him entirely from the arena of military
justice. He concludes that the commander must play an
indispensable role in any system of military justice.
I. INTRODUCTION
[S]tanding armies in time of peace, are inconsistent with the principles of
republican Governments, dangerous to the liberties of a free people, and
generally converted into destructive engines for establishing despotism.'
Despite the fears of the Rebublic's founding fathers,2 the growth
of the American Nation has been attended by a similar growth in
the size of its standing army.3 International tensions, which have
characterized the post World War II era, indicate that a large
military establishment will characterize American society for the
foreseeable future with far reaching consequences to the citizenry
in general and to members of the legal profession in particular.
*This article was adapted from a thesis presented to The Judge Advocate
General's School, U.S. Army, Charlottesville, Virginia, while the author was a
member of the Fourteenth Career Course. The opinions and conclusions present-
ed herein are those of the author and do not necessarily represent the views of
The Judge Advocate General's School or any other governmental agency.
**JAGC, U.S. Army; Instructor, Military Justice Division, The Judge
Advocate General's School, U.S. Army; B.A., 1956, LL.B., 1958, Colorado Uni-
versity; member of the Bars of the State of Colorado, the United States Court
of Military Appeals, and the United States Supreme Court.
127 JOURNALS OF CONTINENTAL CONGRESS 518 (1784) (G.P.O. ed. 1928).
'THE FEDERALIST No. 8, at 45 (Britannica ed. 1952) (Hamilton).
'In 1784, the American Army consisting of 700 men was ordered dis-
charged by the Continental Congress: Resolved, That the commanding officer
be, and he is hereby directed to discharge the troops now in the service of the
United States, except 25 privates, to guard the stores at Fort Pitt, and 55 to
guard the stores at West Point and other magazines, with a proporti -rate
number of officers; no officer to remain in service above the rank of a .ap-
tain. 27 JOURNALS OF CONTINENTAL CONGRESS 524 (1784) (G.P.O. ed. 1928).
As of December 31, 1964, the strength of the U.S. Army on active duty con-
sisted of 971,384 officers and men. WORLD ALMANAC 724 (1965).
'[(M]ilitary justice is the largest single system of criminal justice in the
nation, not only in time of war, but also in time of peace; now, and as far ahead
as we can see. Karlan & Pepper, The Scope of Military Justice, 43 J. CRIM.
L.C. & P.S. 285, 298 (1952).](ViewImageLocal?handle=hein.journals/milrv41&div=4&collection=&method=preview&ext=.png&size=3)
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Judicial Functions for the Commander
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