DOMESTIC DISTURBANCES

209

on the commanding officer for assistance of troops stationed in those places, under the provisions of the Acts of April 30, 1900 (31 Stat. 153), August 29, 1916 (39 Stat. 552), and March 2, 1917 (39 Stat. 955), respectively. (See paragraph 15, supra, with reference to Alaska.)

21. HABEAS CORPUS.-a. The writ of habeas corpus is an order issued by a judge and addressed to the cutodian of a prisoner, directing that such custodian bring the prisoner into the court in order that the legality of the arrest and detention may be inquired into. The purpose of the writ is to prevent imprisonment without trial, or imprisonment on false or trivial charges with a consequent long wait until the case regularly comes up for trial.

b. The necessity for considering this subject in this connection is the fact that when the military authorities arrest the leaders of a mob or those who are inciting a mob to violence, it will almost surely follow that such men are of more than ordinary consequence in the community and that their freedom is quite necessary to the continuance of the disorders. Therefore, these men will early attempt to secure release by petitioning for a writ of habeas corpus. If they can secure the transfer of their cases to a civil court, they will stand a chance to obtain temporary release on bail and thus be enabled to resume their positions as leaders.

c. The two important things to be remembered by the commander of federal troops under such circumstances are:

First: That if the writ issue from the judge of a Federal court, it should be promptly obeyed.

Second: That a State court has no authority to issue a writ of habeas corpus requiring the production of a prisoner held by authority of the United States, and it becomes the duty of the commander upon whom such writ is served to make respectful return to the effect that the prisoner is being held by the authority of the United States Government and that therefore the State court is without jurisdiction. (Tarbell's Case, 13 Wall. 397.) It is thus seen that even when the federal troops are employed in aid of the civil authorities of a State and would usually turn the prisoners over to those authorities as soon as practicable, yet the commander may exercise his own discretion as to the time at which this may be done without jeopardizing the accomplishment of his mission under the orders of the President.

210

MILITARY AID TO THE CIVIL POWER

d. Of course, should the writ of habeas corpus be suspended in an area, no such writ issued would be of any force and effect whatever; but that will rarely if ever happen except as an incident of war. The Constitution of the United States provides that the writ shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it (Art. I, Sec. 9).

22222

26

23

24

How much force may be used, and liability for excess of severity__ 25 Place of trial

22. CHARACTER OF THE DUTY INVOLVED.- -a. As a rule officers find duty with troops, ordered out to suppress internal disorders, most distasteful because in a measure they must oppose their own people, must deal more or less with women and children, and must operate under legal restrictions with which they feel unfamiliar. The knowledge that in certain cases an officer may be held personally liable under the civil law for the acts performed by his troops tends to cause him to proceed with more caution and hesitation than when confronted by the ordinary tactical or administrative questions which his training has better fitted him to handle.

b. In the paragraphs which follow, an effort is made to indicate briefly and clearly the present status of the law in this respect.

23. BOTH CIVIL AND CRIMINAL LIABILITY MAY BE INCURRED.-In cases of the exercise of military force in the suppression of internal disorders, the military man is liable

DOMESTIC DISTURBANCES

211

to civil suit or even to criminal prosecution after the emergency ceases. If he has proceeded under statutory authority, his defense is clear; otherwise his chief reliance for defense must be on necessity rather than statute-on public opinion rather than on law. Mr. Hare, in his excellent work on Constitutional law, says with reference to such cases (p. 95) that:

"All that can be said with certainty is that there must be reasonable and probable cause for believing in the imminency of a peril that suspends the ordinary rules, which must be determined at the time by the commander, but may be reconsidered subsequently by a court or jury, who will rarely look unfavorably on any man who at a critical period has acted in good faith for the protection of the community."

He also says:

"In no instance, so far as I am aware, has an English or American jury allowed an officer or soldier to suffer for acts done with any shadow of right to repel invasion or quell a mob."

24. OBEDIENCE TO ORDERS.-a. Our Army Regulations begin with the statement:

"All persons in the military service are required to obey strictly and to execute promptly the lawful orders of their superiors."

How shall the officer or enlisted man know when an order is not legal, how much inquiry must he make to determine the legality of the order, what will happen if he obeys the order which is found to be illegal, what will happen if he disobeys an order which he thinks is illegal but which really is legal, and, finally, who decides whether or not the order is legal or illegal? As stated by Major Birkhimer:

"It can not be too firmly impressed upon the mind of the military man that the first and last duty of the soldier is cheerful obedience. It is not for him to hesitate except to determine how his orders can be most faithfully executed, not only in the letter, but in spirit. This cheerful obedience to the powers that be is the foundation of discipline, which itself is the soul of the military system."

b. Remembering that obeying an illegal order may subject the inferior to punishment criminally or to an action in damages, according to the nature of the case, and that

212

MILITARY AID TO THE CIVIL POWER disobeying a lawful order, which the inferior thought to be illegal, may subject him to punishment at the hands of the military, it becomes necessary to lay down some sort of a general rule for the guidance of officers and enlisted men. In the ordinary military duties, there are few occasions for the application of such rules, for cases of doubt do not arise. No so, however, when troops are engaged in aiding the civil authorities.

c. In the case of McCall vs. McDowell (Federal Case 8673) the court 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 that the law should excuse the military subordinate when acting in obeIdience to the orders of his commander. Otherwise he is placed in a dangerous dilemma of being liable to third persons in damages for obedience to the order, or to the loss of his commission and disgrace for disobedience thereto.

"If every subordinate officer and soldier were at liberty to question the legality of the orders of their commander, and obey them or not as they may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions.

In

"Between an order, plainly legal, and one palpably otherwise -particularly in time of war-there is a wide middle ground, where the ultimate legality and propriety of orders depend, or may depend, upon circumstances and conditions of which it can not be expected that the inferior is informed or advised. such cases, justice to the subordinate demands, and the necessities and efficiency of the public service require, that the order of the superior should protect the inferior, leaving the responsibility to rest where it properly belongs-upon the officer who gave the command.”

d. In Commonwealth vs. Blodgett et al (10 Metcalf, 56), on the other hand, the court rejected the doctrine that men ought not to be held responsible for the commission of acts done in obedience to orders which they are bound to obey under penalty of military discipline, and held that the rule should be:

"That he who does acts injurious to the rights of others can excuse himself, as against the party injured, by pleading the lawful commands of a superior whom he is bound to obey."

The converse of this is, of course, that obedience to unlawful commands will not constitute an excuse; but Mr.

DOMESTIC DISTURBANCES

213

Hare says, quoting again from his work on Constitutional law, that:

"A subordinate stands in a different position from the superior whom he obeys, and may be absolved from liability for executing an order which it was criminal to give. The question is, had the accused reasonable cause for believing in the necessity for the act which is impugned? And in determining this point a soldier may take the order 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 justifiable, he should not be held guilty for declining to decide that it was 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."

e. The situation has been summed up fairly accurately as follows:

"If the commands of the superior are illegal and obviously so, the inferior who obeys can not avoid responsibility;

"If the commands are illegal, but not obviously so to the ordinary understanding, the inferior will not be held liable if he obeys;

"If the command is legal, and yet the inferior believes it to be otherwise and disobeys, he will be liable for the disobedience."

25. How MUCH FORCE MAY BE USED, AND LIABILITY FOR EXCESS OF SEVERITY.-a. Even though an order be legal and proper, a subordinate may nevertheless incur liability by the manner in which he executes the order.

b. It has already been stated as a general proposition that, when the law imposes on an official an obligation to perform a certain duty, it thereby invests him with the authority to use the customary and necessary measures for the discharge of the duty.

In Commonwealth vs. Shortall (206, Pa. 165) the court said:

"While the military are in active service for the suppression of disorders and violence, their rights and obligations as soldiers must be judged by the standards of actual war. No other standards are possible, for the first and overwhelming duty is to repress disorder, whatever the cost, and all means which are necessary to that end are lawful."

c. As a general proposition, as above stated, an officer or enlisted man cannot become liable to any one by reason