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sibility should be commensurate with freedom of action to do or to refrain from doing. For acts done under what is deemed compulsion or duress, the law holds no one liable. In contemplation of law the wife is under the power and authority of the husband. Therefore for even criminal acts, when done in the presence of the latter, she is not held responsible. The law presumes she acted under coercion of her husband, and excuses her. If the law excuses the wife on the presumption of coercion, for what reason should it refuse a like protection to the subordinate and soldier when acting in obedience to the command of his lawful superior? The latter may be caid to act, particularly in time of war, under actual coercion. As a matter of abstract law it may be admitted that ultimately the law will justify a refusal to obey an illegal order. But this involves litigation and controversy, alike injurious to the best interests of the inferior and the efficiency of the service. The certain vexation and annoyance, together with the risk of professional disgrace and punishment which usually attends the disobedience of orders by an inferior, may safely be deemed sufficient to constrain his judgment and actions, and to excuse him for yielding obedience to those upon whom the law has devolved both the duty and responsibility of controlling his conduct in the premises. True, cases can be imagined, where the order is so palpably atrocious, as well as illegal, that one must instinctively feel that it ought not to be obeyed by whomsoever given. But there is no rule without its exception. This one is practical and just, and the possibility of extreme cases ought not to prevent its recognition and application by the courts.
“ Between an order plainly legal and palpably otherwise-particularly in time of war—there is a wide middle ground, where the ultimate legality and propriety of orders depends, or may depend, upon circumstances and conditions of which it cannot be expected that the inferior is informed or advised. In such cases, justice to the subordinate demands, and the necessities and efficiency of the public service require, that the order of the superio: should protect the inferior; leaving the responsibility to rest where it properly belongs."
The judge further said,—“Except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think the law should excuse the military subordinate when acting in obedience to the order of his superior.” 1
In General Orders of 1852, it is said,—“It is possible a commanding officer may transcend his authority; but in all cases the inferior should act upon the reasonable presumption [of law] that his superior was authorized to issue an order which he might be authorized to issue. If the subordinate act otherwise, he does so at his peril, and subjects himself to the risk of being punished for disobedience. This rule applies equally whether the legality of the order depends upon a question of fact or a question of law."
Compulsion from Fear. Another species of compulsion arises when a person is by physical force, or by threats which induce a fear of death, compelled to do an act contrary to his will. This might be pleaded in cases of mutiny or rebellion. The only force that will excuse is a force upon the person, and present fear of death; and this force and fear must continue all the time the party remains with the rebels.”
(Fourth.) Necessity. The plea of necessity is often a 1 See also Martin vs. Mott, 12 Wheaton, 19. 9 G. 0. 34, A. G, 0. 3 4 Blacks. Com., p. 30, note 13.
good plea in bar of judgment. In case of a mutiny, or in quelling a riot, it may be necessary to wound or even kill persons to accomplish the purpose, or in making an arrest, or preventing an escape, an officer or soldier may have to make use of extreme measures. If brought to trial for such action the plea of necessity will be proper as before stated.
Where an officer or soldier, acting under lawful orders, has certain discretionary powers given him, or where by statute a discretion is conferred upon him, he is to judge of the measures to be used, and he never should be made answerable for any injury when acting within the scope of his authority, and not influenced by malice, corruption, or cruelty. His position, in such case, in many respects becomes quasi judicial, and is not ministerial, as in several other cases of liability by mere ministerial officers. In Martin vs. Mott, the Supreme Court laid down that whenever a statute gives discretionary power to any person, to. be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the Statutes constitute him the sole and exclusive judge of the existence of these facts.3
(Fifth.) Former Punishment. A plea of former punishment, if proved, would appropriately be a bar in judgment.
What will constitute such punishment as will make this an appropriate plea, must depend upon the circumstances of each particular case.
When a punishment has been illegally inflicted without trial, it cannot be set up in bar of trial, although it may be a good plea in bar of judgment.
These causes, which constitute good pleas in bar of 1 Wilkes vs. Dinsman, 7 Howard, 131.
9 11 Johns. 108. Kendall vs. U. S. 12 Peters, 511. Decatur vs. Paulding, 14 Peters, 516.
3 12 Wheaton, 31. • G. O. 27, Army of the Potomac, Oct. 16, 1861.
judgment, are generally not pleaded, as such, before courts-martial, but embodied in the defense.
Pleas to Matter of the Charge. Where the accused has none of the before mentioned pleas to make, he should then plead to the matter of the charge “guilty,” or not guilty.”
Guilty. He may plead“ guilty” to certain portions of the charge, but “not guilty" to others; or “guilty excepting certain words.”
The following General Order, publishing the remarks of Gen. Hancock upon the trial of an officer, may be profitably read in this connection.
“ In the second specification the accused was charged with being, while on an important duty, 'grossly intoxicated' and 'totally incapable to perform the duty assigned him. He pleaded guilty to this specification with the exception of the words "grossly' and 'totally,' and was convicted on his plea, no evidence being introduced to establish the allegations as laid. In my opinion this was a great mistake, shutting off, as it did, all proof of the degree of the offense with which the accused stood charged. If this was to be resorted to as a precedent, similar pleas might frequently be resorted to for the very purpose of withholding the facts in cases of flagrant violation of military law, and thereby increasing the chances of a favorable recommendation or action on review."
A court might properly refuse to admit a plea of guilty to a specification to which the accused added the words “ but alleging no criminality thereto.” It is a plea of a conclusion which it is for the court, if the facts warrant it, to arrive at upon the evidence. Such a plea, however, has been allowed and not objected to by the War Department.'
1 G. C. M. O. 69, A, G. O., 1877. 8 G. C. M. 0, 75, A, G. 0. 1875.
Opinions J. A, G., p. 281.
It often happens that the accused pleads "guilty," and then makes a statement not in accord with his plea. In thú case of desertion, for example, a soldier often pleads “ guilty," and then states that he intended to return; now intent to remain away is the gist of desertion, so that the plea and the statement do not correspond. The court should in these cases regard the statements as neutralizing each other, and should have the accused instructed as to his legal rights, and advised to change his plea with a view to the hearing of testimony.
Standing Mute. When a prisoner, arraigned before a general court-martial, from obstinacy and deliberate design stands mute, or answers foreign to the purpose, the court may proceed to trial and judgment as if the prisoner had pleaded not guilty.
A prisoner may, however, stand mute from other
Ist, He may be mute by the visitation of God.
20, He may not have sufficient intellect, or may not sufficiently understand the course of proceedings to enable him to make a proper plea.
The article in these cases evidently contemplates a different course; and the practice is for the court to suspend its proceedings until the prisoner is able to plead, or is of sufficient intellect, or is able to understand the proceedings, evidence, etc., so as properly to defend himself.
Controlling Pleas. It is not competent for a commanding general, by a general order, to control parties in their pleas when arraigned before a general court-martial. If they insist upon pleading “guilty " they cannot be pre
"G. C. M. O. 2, A. G. C. 1872. G. C. M. O, 63, A. G. O. 1874. G. C. M. O. 205, A. G. O. 1876.