The Study of Law as a Foundation of Leadership and Command: The History of Law Instruction at the United States Military Academy at West Point

• Author: States Military Academy At West Point
• Pages: 04

112 MILITARY LAW REVIEW [Vol. 181

THE STUDY OF LAW AS A FOUNDATION OF LEADERSHIP AND COMMAND:

THE HISTORY OF LAW INSTRUCTION AT THE UNITED

STATES MILITARY ACADEMY AT WEST POINT*

COLONEL PATRICK FINNEGAN†

I never discussed the Constitution very much, and I never made many speeches upon it, but I have done a good deal of fighting for it.

-Lt. Gen. Philip Sheridan1

The study of law at the U.S. Military Academy is almost as old as the Academy itself. Fourteen years after Congress established the school at West Point in 1802, Academy regulations prescribed that "a course in Ethics shall include Natural and Political Law."2 Two years later, Congress passed a statute providing for "one Chaplain stationed at the Military Academy at West Point who shall be Professor of Geography, History and Ethics, with the pay and emoluments allowed a Professor of Mathematics."3 The resulting Department of Geography, History, and Ethics, headed by the Chaplain, the Reverend Doctor Thomas Picton, became the fourth established academic department, following the Departments of Philosophy, Mathematics, and Engineering.4 Since those early days when the Chaplain was charged with teaching natural and political law, the Academy has maintained required courses in the study of law as an essential part of the preparation and education of future officers.

Early Subjects and Texts

Although the newly established department began teaching geography, history, and ethics in 1818, there is no record that any law instruction was actually given before 1821, when Monsieur De Vattel's The Law of Nations,5a treatise on international law, was adopted as a textbook.6 An 1823 Military Academy Regulation prescribed that First Class cadets (seniors) would attend four hours of this instruction every week.7 The Chaplain and the other officers who assisted him, although not lawyers, also taught moral philosophy, the origin of civil society, principles of civil liberty, modes of civil government, and constitutional law, in addition to the law of nations.8 The study of natural and political law was intended to

foster the intellectual and cultural growth of the cadets, as well as to develop their reasoning ability and instill in them the basic principles of a society based on the rule of law.9

As the study of law evolved in West Point's early years, cadets studied a variety of topics and read from multiple sources. From 1821 to 1842, the various chaplains and professors adopted the Reports of the United States Supreme Court as addenda to the textbooks.10 The study of American constitutional law replaced natural law (which emphasized international law) in 1827, but by 1838 the course of study in law provided for instruction in both constitutional and international law.11 During this period, William Rawle's A View of the Constitution of the United States of America12 may

have been studied by some cadets in the late 1820s, but it was never officially adopted as a textbook.13 Rawle's treatise concluded that a state has a legal right to secede from the Union, and this was most likely the basis for the post-Civil War argument that West Point had taught "secession" for decades and thus was responsible for many West Point graduates fighting for the Confederacy.14 Although it is impossible to know the precise extent of Rawle's influence, his ideas had a profound effect on at least some cadets. Gen. Robert E. Lee, Class of 1829, confided in Bishop Joseph Wilmer of Virginia that, if he had not read Rawle's work as a cadet, he would never have left the Union.15

Rawle's book was in use for less than two years before James Kent's well-known Commentaries on American Law replaced it in 1828.16 The

latter volume, covering both international and constitutional law, remained in use as a textbook at the Academy for over 30 years.17 Rather than arguing that the states had a right to secede, Kent concluded that the distinguishing feature of the U.S. Constitution was to bind the states in union with each other. In this regard America's constitutional system differed markedly from the political system that prevailed under the Articles of Confederation, which allowed states to effectively veto proposals or ignore policies of the central government.18 Ever since constitutional law was introduced into the curriculum in 1827, it has been a required course and an essential part of the professional education of cadets who upon commissioning swear to support and defend the Constitution. Hence, except for a brief period during which a secessionist viewpoint appeared in a book available to cadets, the Academy's law curriculum was unequivocal in

emphasizing the legitimacy of the Constitution and the inviolability of the Union.

The Antebellum Period and the Civil War

Although the Academy emphasized law instruction during its first 50 years, unfortunately none of the teachers were lawyers. Had lawyers been available, the instruction certainly would have been better, but there were simply not enough lawyers in the Army to justify assigning them to the faculty. Tellingly, the same Act of 16 March 1802 that established the U.S. Military Academy abolished the position of Judge Advocate of the Army.19 When the Army needed judge advocates, Congress would periodically pass statutes providing for their inclusion in the force structure, but from 1821 until 1849, there were no statutory enactments related to judge advocates and no full-time lawyers in the Army.20 hen judge advocates were needed for courts-martial, the Army typically would appoint line officers to fill the duty temporarily.21 Congress finally reestablished the position of Judge Advocate of the Army in 1849; 13 years later, as the Army expanded to fight the Civil War, Congress enacted legislation creating the Judge Advocate General's Corps.22

The Military Academy worked hard to refine the law curriculum despite the unavailability of Army lawyers as instructors. With so few judge advocates in the Army, the need for line officers to understand and apply the principles of law became even more apparent. In 1858, the Academy instituted the study of military law, which included the Rules and Articles of War, criminal law, and evidentiary procedures for courts-martial.23

Nine years later, the Academic Board discontinued instruction in the subjects of geography, history, and ethics and directed the Chaplain to focus solely on the teaching of international, constitutional, and military law.24 During this period, the instruction emphasized the relation of law to moral values, as well as philosophical aspects of international and constitutional law.25 Military law, a subject of great professional interest to future Army officers, included study of War Department General Order 100 of 1863, in which Francis Lieber codified, for the first time in history, a compilation of the Laws of War.26

As the American military became more professional in the mid 19th century, the benefits of understanding military law were clear. There were never enough qualified Army lawyers in the field, and line officers there-

fore assumed greater responsibility in meeting legal requirements and in courts-martial. To help address the legal needs of the Army, the Board of Visitors of the Military Academy recommended in 1849, and again in 1858, that a separate Department of Law be established.27 Congress finally acted on those recommendations in 1874, over 50 years after the start of law instruction at West Point.

The Department of Law, 1874-1908

The establishment of the Department of Law reflected the Army's priority on improving the officer corps's legal skills. The 1874 statute authorized the Secretary of War to "assign one of the senior Judge Advocates of the Army to be Professor of Law."28 This was a significant step, considering that the Congress had passed another law that year which reduced the Judge Advocate General's Corps from a total of eight officers to four.29 The latter law was part of a major compilation of U.S. statutory law that included a reorganization of the Army Staff, revision of the Articles of War of 1806, and reduction in the size of the Army to 25,000 men.30 Additionally, the law authorized a new type of wartime court-martial, known as the field officer's court and run by commissioned officers.31 These statutory innovations underscored the importance of continued and improved instruction in law at West Point, and they may have significantly influenced the decision to assign 25 percent of the Judge Advocate General's Corps to the Academy.32

The Army and Navy Journal, a leading service publication, called the law "a step in the right direction" and summed up the rationale for its unanimous passage:

The study of the general principles of law . . . and the study of the Constitution of the United States and of the administration of justice in the Army . . . have, since the Rebellion, become matters of primary importance [for] every individual holding a military commission.33

The Civil War and Reconstruction highlighted the need for commissioned officers to be savvy practitioners of military law. They had to be able to enforce court processes while protecting civil liberties, as well as to understand rules of evidence, courts-martial procedures, and military criminal

justice. In light of these requirements, the Journal concluded, "The necessity for such a department seems to have been long felt."34

The professors who headed the new Department of Law were distinguished scholars and soldiers who made significant contributions to the Academy and the nation. The first Professor of Law (and the first lawyer ever to teach law at the Military Academy) was Maj. Asa Bird Gardiner, appointed to the position on 29 July 1874.35 An 1860 graduate of New York University Law School, he gave up his legal practice to fight for the Union in the Civil War.36 He was wounded in an engagement at Carlisle, Pennsylvania, in 1863 and was awarded the Medal of Honor for...