| | On the founders' real education in law; Washington, Jefferson and Adams, and their familiarity with Roman civil and English common law:
An excerpt from:
AMERICAN MJIJTARY LAW IN THE LIGHT OF
THE FIRST MUTINY ACT’S TRICENTENNIAL*
by Colonel Frederick Bernays Wiener, AUS (Retired)* *
II. THE BEGINNINGS OF AMERICAN
MILITARY LAW
It is now time to cross the Atlantic and to turn to 1775, the year
of Lexington, Concord, and Bunker Hill, the year when the Continen-
tal Congress selected George Washington to command “the forces
raiased or to be raised for the defense of American liberty,”29 the
year when William Tudor became the first “Judge Advocate of the
Army.’ ’30
Let it always be remembered, as we approach this part of the nar-
rative, that the leaders of the American Revolution were really not
very revolutionary after all. To begin with, they retained the English
language. Unlike the Irish Free State a century and a half later, they
did not mark their new found freedom by opting for Gaelic. Nor did
they seek to substitute any other language for their mother tongue.
Next, they retained the common law. Not until Louisiana was ac-
quired by treaty in 1803 was there ever any vestige of civil law on
American soil, nor until the Southwest was taken from Mexico in
1848 was the doctrine of community property recognized anywhere
in the United States. Third, they retained the English system of
representative government, one that continues nationally as well as
in all of today’s fifty states. And, finally, they adopted virtually ver-
batim the British system of military law.
Americans had become acquainted with the British system in the
course of the four colonial wars against the French. Washington
himself, while Colonel of the First Virginia Regiment, had presided
over at least one general ~ourt-martial,~~ and as commanding officer
of that unit had meted out what today would be deemed extremely
harsh discipline. His deserters were hanged in preference to being
shot, on the view that hemp carried a sterner warning than lead.32
Within a fortnight after making Washington their general, Congress
enacted a set of Articles of War.33 But after some experience under
that code, Washington considered that legislation insufficient and
urged adoption of a more drastic Accordingly, Congress refer-
red the problem to a committee of five, of which John Adams and
Thomas Jefferson were members.35 Here is how Adams later recall-
ed the Committee’s work:
It was a very difficult and unpopular Subject: and I observed
to Jefferson, that Whatever Alteration We should report with
the least Ennergy in it, or the least tendency to a necessary
discipline of the Army, would be opposed with as much
Vehemence as if it were the most perfect: We might as well
therefore report a compleat System at once and let it meet its
fate. Some thing perhaps might be gained. There was extant
one System of Articles of War, which had carried two Empires
to the head of Mankind, the Roman And the British: for the
British Articles of War were only a litteral Translation of the
Roman: it would be in vain for Us to seek, in our own Inven-
tions or the Records of Warlike nations for a more compleat
System of military discipline: it was an Observation founded
in undoubted facts that the Prosperity of Nations had been in
proportion to the discipline of their forces by Sea and Land:
I was therefore for reporting the British Articles of War, totidem
Verbis. Jefferson in those days never failed to agree with me,
in every Thing of a political nature, and he very cordially agreed
in this. The British Articles of War were Accordingly reported
and defended in Congress, by me Assisted by some others, and
finally carried.
(Edited by Ted Keer on 2/10, 4:52pm)
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