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class of cases, followed the common law rule that an officer who commits an unlawful act pursuant to an illegal order is not protected by such an order from personal responsibility. The Chief Justice said:
I confess, the first bias of my mind was very strong in favor of the opinion, that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which, indeed, is indispensably necessary to every military system, appeared to me strongly to imply the principle, that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which, in general, requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized, with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is that the instructions cannot change the nature of the transaction, nor legalize an act which, without those instructions, would have been a plain trespass.
A contrary view was later taken by Judge Story, speaking for the same court, in a case which involved the responsibility of a soldier who disobeyed a valid order on the ground that he regarded it as illegal. In Martin v. Mott, 1827 (12 Wheaton 28), Judge Story held that,
The service is a military service, and the command, of a military nature; and in such cases, every delay, and every obstacle to an efficient and immediate compliance, necessarily tend to jeopardize the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander-in-chief exercises the right to demand their services, the hostile enterprise may be accomplished, without the means of resistance.
The subject is discussed by Dicey in connection with the suppression of riots and rebellions. He concludes that the matter is one which has never been absolutely decided, but quotes with approval the following passage from Mr. Justice Stephens' History of Criminal Law of England, pp. 205-206, as nearly correct a statement of the rule as the authorities make it possible to provide:
The doctrine that a soldier is bound under all circumstances whatever to obey his superior officer would be fatal to military discipline itself, for it would justify the private in shooting the colonel by the orders of the captain, or in deserting to the enemy on the field of battle on the order of his immediate superior. I think it is not less monstrous to suppose that superior orders would justify a soldier in the massacre of unoffending civilians in time of peace, or in the exercise of inhuman cruelties, such as the slaughter of women and children, during a rebellion. The only line that presents itself to my mind is that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds. The inconvenience of being subject to two jurisdictions, the sympathies of which are not unlikely to be opposed to each other, is an inevitable consequence of the double necessity of preserving on the one hand the supremacy of the law, and on the other the discipline of the army.
Birkhimer states that while such a rule may sometimes appear to be unjust, “it is based on public policy and flows from the consideration that society should be protected from the evil-doer, who may not be permitted to evade the consequences of his unlawful acts by pleading the orders of anyone, for no one has a right either to set the laws at defiance or authorize another to do so. Still,” he says, “as regards members of the military profession, the workings of the rule are liable to be so harsh that judges are moved sometimes not only to temper justice with great mercy, but, so far as practicable, to transfer the responsibility to the officer who issued the illegal order.” “No wonder,” he continues, "that courts, when they pass judgment in such cases, yield a willing ear to the promptings of humanity, and place, so far as possible, responsibility for violations of the law upon superiors who initiate them, rather than upon subordinates whose actions, in carrying into execution the orders of those whom the law has placed over them, are wholly involuntary.”.
The same author thereupon draws the following distinction between the responsibility of superiors and subordinates:
A subordinate stands in a different position from the superior when he obeys, and may be absolved from liability for executing an order which it was criminal to give. The question is, Had accused reasonable cause for believing in the necessity of the act which is impugned ? and in determining this point a soldier may take the orders of the person in command into view as proceeding from one who is better able to judge and well informed; and, if the circumstances are such that the command may be justi. fiable, he should not be held guilty for declining to decide that it is wrong, with the responsibility incident to disobedience, unless the case is so plain as not to admit of a reasonable doubt. A soldier consequently runs little risk in obeying any order which a man of common sense so placed would regard as warranted by the circumstances.8
At the close of the Civil War in the United States, the indignation aroused in the North by the treatment of prisoners of war at Andersonville, Georgia, resulted in the trial of the commandant of that prison, Henry Wirz, for crimes which it was alleged were committed by him or by his orders. One of the pleas of the accused was that he merely acted as a subordinate in carrying out the orders of the commander of the post. The Judge Advocate admitted that the accused acted under orders, but replied, “A superior officer cannot order a subordinate to do an illegal act, and if a subordinate obey such an order and disastrous consequences result, both the superior and the subordinate must answer for it. General Winder could no more command the prisoner to violate the laws of war than could the prisoner do so without orders.” Wirz was convicted on
4 Dicey, Law of the Constitution, pp. 301-302.
all counts and executed in the arsenal grounds at Washington on November 10, 1865.
In the course of his argument in the Wirz case, the Judge Advocate called attention to a case in Scotland where an officer was convicted of murder in a Scotch court for killing a French prisoner of war, under the following circumstances :
Ensign Maxwell was tried in 1807, before the High Court of Justiciary of Scotland, for the murder of Charles Cottier, a French prisoner of war, at Greenlow, by improperly ordering John Low, a sentinel, to fire into a room where Cottier and other prisoners were confined, and so causing him to be mortally wounded. Maxwell was in charge of three hundred prisoners of war; the building in which they were confined was of no great strength and afforded some possibility of escape; to prevent which, the prisoners being turbulent, an order was given that all lights were to be put out at 9 o'clock; if not done at the second call, the guard would fire upon the prisoners, due notice having been given them. On the night in question there was a tumult in prison. Maxwell's attention being drawn to it, he observed a light burning beyond the appointed hour and twice ordered it to be put out; this order not being obeyed, he directed the sentry to fire, which he did, Cottier receiving a mortal wound. Maxwell was found guilty, with recommendation to mercy, and was sentenced to nine months' imprisonment." (Scott's Dictionary, p. 267.)
Military men naturally seek to protect themselves as much as possible from any personal consequences of their acts; hence these sweeping amnesties for whatever is committed under orders in the present codes of military law. It is submitted that this is a subject which ought to receive careful consideration by any conference, private or governmental, which undertakes to deal with the restatement of the laws of war. The unqualified acceptance of the principle that a subordinate is not responsible for what he does under orders of his superiors will make it practically impossible to enforce proper penalties for violations of the laws of war designed to humanize, if such be possible, that grim recourse.
GEORGE A. FINCH.
THE ANNUAL MEETING OF THE SOCIETY Pursuant to the announcement printed in the January number of the JOURNAL, and to the program subsequently sent to the members, the Society held its first meeting since 1917 at Washington, on April 27-30, last. The meetings were well attended and the attendance was in fact so large that it overtaxed the accommodations which the committee had provided.
The general topic, “The Advancement of International Law,” was considered in its fundamental aspects by the Honorable Elihu Root, President of the Society, in his presidential address delivered on opening the meeting on Wednesday evening, April 27. The address was not only well received, but has been pronounced by many who heard it as Mr. Root's greatest utterance on the subject of international law and relations. The address was extensively printed in the press of the country.
The Honorable Manoel de Oliveira Lima, former Minister of Brazil to Japan, Sweden, Belgium and Venezuela, also spoke on the same evening upon the subject of “The Reconstruction of International Law." His remarks were very interesting as giving the Latin-American point of view.
The topic was taken up more in detail the following day. On the morning of Thursday, April 28th, Mr. James Brown Scott spoke upon the “Advancement of International Law essential to an International Court of Justice.”
The main consideration of the topic in detail was assigned to four subcommittees appointed in advance to submit reports to the Society. The subjects assigned to the subcommittees were as follows:
Subcommittee No. 1: To restate the established rules of international law, especially, and in the first instance, in the fields affected by the events of the recent war.
Subcommittee No. 2: To formulate and agree upon the amendments and additions, if any, to the rules of international law shown to be necessary or useful by the events of the war and the changes in the conditions of international life and intercourse which have followed the war.
Subcommittee No. 3: To endeavor to reconcile divergent views and secure general agreement upon the rules which have been in dispute heretofore.
Subcommittee No. 4: To consider the subjects not now adequately regulated by international law, but as to which the interests of international justice require that rules of law shall be declared and accepted. A special subject to illustrate the work of each subcommittee was assigned to particular speakers. Following Dr. Scott's address on Thursday morning, Mr. Lester H. Woolsey, former Solicitor for the Department of State, read a paper on the “Munitions Trade” as illustrative of the work of Subcommittee No. 1. Mr. Charles Cheney Hyde, Professor of International Law in Northwestern University, read a paper on “Conditional Contraband” as illustrative of the work of Subcommittee No. 2, and Mr. George Grafton Wilson, Professor of International Law in Harvard University, read a paper on “Continuous Voyage” as illustrative of the work of Subcommittee No. 3. Papers illustrative of the work of Subcommittee No. 4 were read at the evening session of Thursday, the 28th, as follows: “International Criminal Jurisdiction,” by Mr. Jesse S. Reeves, Professor of Political Science in the University of Michigan; “The Status of International Cables in War and Peace,” by Mr. Elihu Root, Jr., of the New York Bar; “The International Regulation of Aërial Navigation," by Mr. Arthur K. Kuhn, of the New York Bar.
The Committee for the Advancement of International Law held a general meeting on the morning of Friday, April 29th, to coordinate the work of the subcommittees. The subcommittees met during the afternoon of the same day and completed their reports, which were submitted to the Society at its general meeting on the evening of the 29th. The reports were submitted by the following Chairmen: Mr. Charles Noble Gregory, Subcommittee No. 1; Dr. Harry Pratt Judson, Subcommittee No. 2; Hon. Simeon E. Baldwin, Subcommittee No. 3; Professor Paul S. Reinsch, Subcommittee No. 4.
At the closing session of the Society on Saturday morning, April 30th, the reports were received and the Committee for the Advancement of International Law continued with instructions to submit further reports to the Society at its next meeting.
The Executive Council held two sessions during the meeting, the first on the afternoon of Thursday, April 28th, and the second on the morning of Saturday, April 30th, after the adjournment of the Society. In addition to the performance of its routine work, it adopted a recommendation, which was presented to the Society on the morning of April 30th, that the constitution of the Society be amended so as to provide that hereafter members of the Council shall not be eligible for reëlection until after the lapse of one year from the expiration of their terms of office. This amendment will be submitted to and acted upon by the Society at its next annual meeting.
At the business meeting of the Society held on Saturday, April 30th, the amendment to the constitution proposed by the Council on November 13, 1920, relating to the charge for the Society's publications, was adopted. This amendment was set forth and explained in the January, 1921, number of the JOURNAL, page 76.
The members of the Society in attendance upon the meeting were