passer."

Ed. 75.

Taney, C. J., Mitchell v. Harmony, 13 How. 115, 14 L.

And, while the military are in active service for the suppression of disorder and violence, their rights and obligations as soldiers must be judged by the standard of actual war. No other standard is possible, for the first and overruling duty is to repress disorder, whatever the cost, and all means which are necessary to that end are lawful. The situation of troops in a riotous and insurrectionary district approximates that of troops in an enemy's country, and in proportion to the extent and violence, of the overt acts of hostility shown is the degree of severity justified in the means of repression. The requirements of the situation in either case, therefore, shift with the circumstances, and the same standard of justification must apply to both. The only difference is the one already adverted to, the liability to subsequent investigation in the courts of the land after the restoration of order.

Coming now to the position of the relator in regard to responsibility, we find the law well settled. "A subordinate stands, as regards. the application of these principles, 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, as we have seen, had the accused reasonable cause for believing in the necessity of the act which is impugned, and in determining this point a soldier or member of the posse comitatus may obviously 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 justifiable, he should not be held guilty for declining to decide that it is wrong with the responsibility incident i 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." Hare, Const. Law, p. 920.

The cases in this country have usually arisen in the army and been determined in the United States courts. But by the articles of war (article 59), under the acts of Congress, officers or soldiers charged: with offenses punishable by the laws of the land are required (except in time of war) to be delivered over to the civil (i. e., in distinction from military) authorities, and the courts proceed upon the principles of the common (and statute) law. U. S. v. Clark (C. C.) 31 Fed. 711. The decisions, therefore, are precedents applicable here.

A leading case is U. S. v. Clark (C. C.) 31 Fed. 710. A soldier on the military reservation at Ft. Wayne had been convicted by court martial, and when brought out of the guardhouse with other prisoners at “retreat” broke from the ranks, and was in the act of escaping, when Clark, who was the sergeant of the guard, fired and killed him. Clark was charged with homicide, and brought before the United States. District Judge, sitting as a committing magistrate. Judge Brown, now of the Supreme Court of the United States, delivered an elaborate and well-considered opinion, which has ever since been quoted as authoritative. In it he said: "The case reduces itself to the naked legal proposition whether the prisoner is excused in law in killing the de

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ceased." Then, after referring to the common-law principle that an officer having custody of a prisoner charged with felony may take his life if it becomes absolutely necessary to do so to prevent his escape, and pointing out the peculiarities of the military code, which practically abolish the distinction between felonies and misdemeanors, he continued: "I have no doubt the same principle would apply to the acts of a subordinate officer, performed in compliance with his supposed duty as a soldier; and unless the act were manifestly beyond the scope of his authority, or were such that a man of ordinary sense and understanding would know that it was illegal, that it would be a protection to him, if he acted in good faith and without malice."

In McCall v. McDowell, 1 Abb. (U. S.) 212, Fed. Cas. No. 8,673, where an action was brought by plaintiff against Gen. McDowell and Capt. Douglas for false imprisonment under a general order of the former for the arrest of persons publicly exulting over the assassination of President Lincoln, 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 will excuse a military subordinate, when acting in obedience to the order of his commander; otherwise he is placed in a dangerous dilemma of being liable to damages to third persons for obedience to the order, or for the loss of his commission and disgrace for disobedience thereto. * * * Between an order plainly legal and one palpably otherwise 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 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 superior should protect the inferior, leaving the responsibility to rest where it properly belongs, upon the officer who gave the command." The court, sitting without a jury, accordingly gave judgment for Capt. Douglas, though finding damages against Gen. McDowell.

In U. S. v. Carr, 1 Woods, 480, Fed. Cas. No. 14,732, which was a case of the shooting of a soldier in Fort Pulaski by the prisoner, who was sergeant of the guard, Woods, J., afterwards of the Supreme Court of the United States, charged the jury: "Place yourselves in the position of the prisoner at the time of the homicide. Inquire whether at the moment he fired his piece at the deceased, with his surroundings at the time, he had reasonable ground to believe, and did believe, that the killing or serious wounding of the deceased was necessary to the suppression of a mutiny then and there existing, or of a disorder which threatened to ripen into mutiny. If he had reasonable ground so to believe, then the killing was not unlawful. But if, on the other hand, the mutinous conduct of the soldiers, if there was any such, had ceased, and it so appeared to the prisoner, or if he could reasonably have suppressed the disorder without the resort to such violent means as the taking of the life of the deceased, and it would so have appeared to a reasonable man under like circumstances, then the killing was unlawful. But it must be understood that the law will not require an officer charged with the order and discipline of a

camp or fort to weigh with scrupulous nicety the amount of force necessary to suppress disorder. The exercise of a reasonable discretion is all that is required."

In Riggs v. State, 3 Cold. (Tenn.) 85, 91 Am. Dec. 272, the Supreme Court of Tennessee held to be correct an instruction to the jury that "any order given by an officer to his private which does not expressly and clearly show on its face, or in the body thereof, its own illegality, the soldier would be bound to obey, and such order would be a protection to him.”

These are the principal American cases, and they are in entire accord with the long line of established authorities in England.

Applying these principles to the act of the relator, it is clear that he was not guilty of any crime. The situation, as already shown, was one of martial law, in which the commanding general was authorized to use as forcible military means for the repression of violence as his judgment dictated to be necessary. The house had been dynamited at night and threatened again. With an agent so destructive, in hands so lawless, the duty of precaution was correspondingly great. There was no ground, therefore, for doubt as to the legality of the order to shoot. The relator was a private soldier, and his first duty was obedience. His orders were clear and specific, and the evidence does not show that he went beyond them in his action. There was no malice, for it appears affirmatively that he did not know the deceased, and acted only on his orders when the situation appeared to call for action. under them. The unfortunate man who was killed was not shown to have been one of the mob gathered in the vicinity, though why he should have turned into the gate is not known. The occurrence, deplorable as it was, was an illustration of the dangers of the lawless condition of the community, or of the minority who were, allowed to control it, and must be classed with the numerous instances in riots and mobs where mere spectators and even distant noncombatants get hurt without apparent fault of their own.

Whenever a homicide occurs, it is not only proper, but obligatory, that an official inquiry should be made by the legal authorities. Such an inquiry was had here at the coroner's inquest, and if there were any doubt about the facts we should remand the relator to the custody of the constable under his warrant, for a further hearing before the justice of the peace. But there was no conflict in the evidence before the coroner, and the commonwealth's officer makes no claim here that anything further can be shown. The facts, therefore, are not in dispute, and the question of relator's liability depends on whether he had reasonable cause to believe in the necessity of action under his orders. As said by Judge Hare, citing Lord Mansfield, in Mostyn v. Fabrigas, 1 Cowper, 161: "The question of probable cause in this as in most other instances is one of law for the court. The facts are for the jury; but it is for the judges to say whether, if found, they amount to probable cause." Hare's Const. Law, 919.

In U. S. v. Clark (C. C.) 31 Fed. 710, already cited, Mr. Justice Brown said: "It may be said that it is a question for the jury in each case whether the prisoner was justified by the circumstances in making use of his musket, and if this were a jury trial I should submit that

* *

question to them. * But as I would, acting in (that) capacity, set aside a conviction if a verdict of guilty were rendered, I shall assume the responsibility of directing his discharge."

This court, either sitting as a committing magistrate or by virtue of its supervisory jurisdiction over the proceedings of all subordinate tribunals (Gosline v. Place, 32 Pa. 520), has the authority and the duty, on habeas corpus in favor of a prisoner held on a criminal charge, to see that at least a prima facie case of guilt is supported by the evidence against him. In the relator's case the facts presented by the evidence are undisputed, and on them the law is clear and settled. If the case was before a jury, we should be bound to direct a verdict of not guilty, and to set aside a contrary verdict if rendered. It is therefore our duty now to say that there is no legal ground for subjecting him to trial, and he is accordingly discharged.

The relator, Arthur Wadsworth, is discharged from further custody under the warrant held by respondent.

11. CLEVELAND v. HARRIES.

(Court of Appeals of District of Columbia, 1908. 32 App. D. C. 300.) The Court in the opinion stated the facts as follows:

This is an appeal from a judgment rendered in an action brought by appellant, William G. Cleveland, plaintiff below, as administrator of the estate of Melvin L. Cleveland, deceased, for damages sustained by the drowning of plaintiff's intestate in the Potomac river. The action was brought against the appellee, George H. Harries, brigadier general, commanding the National Guard of the District of Columbia, William E. Bloe, navigating officer, and Frank S. Durston, ensign, respectively, of the Naval Battalion of the District National Guard. The deceased was an enlisted man in the Naval Battalion, and the accident occurred while he was on duty as a member of the crew on a vessel on the Potomac river. * * *

It is alleged in the declaration filed below that the defendants Bloe and Durston were recommended by appellee for appointment. * * * It is then alleged that appellee ordered the U. S. S. Oneida, a steam yacht loaned by the Navy Department of the United States to the Naval Battalion of the District of Columbia, * * * to be taken on a cruise down the Potomac river; that he, knowing that defendants Bloe and Durston were not competent to take charge of said vessel, ordered and directed Bloe to act in the capacity of master or commander of the vessel and Durston to act in the capacity of first officer. It is further alleged "that the defendant Harries, purely for his own personal gratification and pleasure, personally ordered, directed, and commanded to be taken or towed along with the said U. S. S. Oneida, on the cruise aforesaid, at the time aforesaid, a small speed launch, the property of the Naval Battalion of the National Guard of the District of Columbia." It is then charged that it was the duty of appellee to see that the launch was sufficiently staunch and so constructed and so attached as to be safely towed behind the said vessel.

The declaration then alleges at considerable length, and in great detail, that, owing to the defective manner in which the launch was attached to the vessel and the careless and negligent manner in which the vessel was handled, the accident here in question resulted. The deceased, it is alleged, had been ordered by Bloe and Durston to go on board the launch for the purpose of steering it, and was so engaged, in obedience to orders, when the accident happened. In one count of the declaration, appellee is charged with taking the vessel on a practice cruise down the Potomac river, and, in another count, with having ordered the trip for his own gratification and pleasure. In the court below, appellee and Durston demurred to the declaration, and the court sustained the demurrer as to appellee and overruled it as to Durston. Plaintiff elected to stand upon his declaration, and judgment was entered accordingly. The case comes here as to appellee Harries alone. * * *

Mr. Justice VAN ORSDEL delivered the opinion of the Court.

* * *

It is sought to attach liability to appellee on the ground that he was negligent in placing Bloe and Durston in charge of the vessel. He is charged with knowledge of their alleged incompetency to properly manage the vessel. It does not appear from the record that any of the things charged as directly causing the accident were done by the order of appellee, or even with his knowledge. The specific charge in the declaration * * * is one of negligence on the part of Bloe and Durston. The accident was caused by failing to release the launch or stop the boat when it began to yaw and rock. This charges negligence, not against appellee, but the other defendants. The failure to connect appellee with this act of alleged negligence, either by his presence at the time, or by an order to proceed in this negligent and reckless manner, or with knowledge and approval of a custom on the part of his subordinate officers to so manage the boat in the manner in which it was being run at the time of the accident, we think, is sufficient to relieve him of any liability. * * *

This narrows the question down to whether or not appellee was actionably negligent in appointing Bloe and Durston to the command of the vessel. Much greater latitude is allowed an officer of the government in the performance of official duty than would be accorded a private individual. He cannot be held liable for an honest mistake in judgment, no matter how fatal the mistake may prove. The law relating to the liability of officers is well stated in Thompson on Negligence (2d Ed.) vol. 1, sec. 588: "Those officers whose duties are of a public or governmental nature are not in general liable for the wrongs of those through whose agency they are obliged. to act. Such agents are deemed agents of the public or of the government, and not agents of the superior officer whose orders they receive and obey. This is obviously the rule with regard to military officers, and probably the books disclose no instance of an attempt to make a military commander responsible for a wrong of his subordinate, unless such wrong was directly traceable to some wrong of his own. Neither is the captain of a war vessel answerable for the damage done by her in running down another vessel, if the mischief