Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1895-07-06

/ 1T may be presumed generally that
VIII &C. persons have authority to ARE 70.
or mprisou, or otherwise execute the
public Justice and using proper means
Tor tina. purpose, are resisted tn 50 do.
Ing, and iuc party resisting is killed iu
ile situ * C., such homicide Is iusiih-
able md again: the RUE Is not
confined 10 the instant the officer IS on
tlc spot, for he under the same pro.
lection going TO-, remaining 40, or re-.
turning Iam the slme.'
Tie instruction issued by the war
department iuf the government 81 the
armies OF the United States To- the field
declares that armed or ugJrmci o..
..liatce by citizens OF tie United States
against The lawful movements of their
troops is layyrg war against thc United
States aud % rr.0rc reason
Sem. 90 She slate laws are very plain
ou this subject. as lar instance. Iu
Connecticut there rs thb proys OU 'li
any person 1r persons resisting the laws
q. ih. state, or uullNiu,Iy VI uUtUusIy
assembled shall be injured or killed
uy any ni the military force called out
under the provisions OF this acc, such
force shall be discharged noH aii civil
or criminal liability therefor
The question 90 the duties Of sulof.
dInatc officers with reference O. their
orders from superior military authority.
aud their own limit OF discretion when
acting under order, may he considered.
Willing. iu ms "Waf Powers" says;
'Wnltyyef military man obeys the
order Of his superior officer is justified
by Law in doiu. so. Obedience 10 ord r5
Is a part OF the Law Of the land. Acs
done IN obedience 10 military orders
will not subject the agent 10 civil OF
criminal liability 10 courts Of law. But
on the other hand, any abuse OF military
authority subjects the offender to civil
liability for such abuse aud he who
authorized the wrong Is respons.'s's for
It"
A legal order must be obcycd. This
Is an article Of our creed, but the civil
as well as the military authorities 10
still further, and say that an order that
Is not clearly Illegal AT first blush"
shall also be Obcyed, "exccp, ~ n plain
case Of excess OF authority where at
first blush Il Is apparent and palpablc TO
the cOmmonCst understanding that the
order Is Illegal, cannot but think that
the law should excuse the military sub.
ordinate when acting In obedience TO
the orders OF his commander.
Toe habit OF discipline and obedience
in soldier Is, believe, more essential
to the wellbeing Of the state than the
possibility Of hi, now aud then exccut.
ing an illegal order Is injurious TO IT,"
In the same case Ii was said that IL
was not necessary to the ends OF justice
that the subordinate, or soldier. should
be responsible Tor the illegal order OF
superior. The decisions point to the
officer giving the order and he will
generally be held to account. in times Of
disturbance. but this subject, giving
orders. has also had judicial attention
The rules ui Official responsibility are
applicable under martial law as else.
where. The commander cannot eyadc
just liability for his acts. Whiting
says. "Our safeguards against abuse
OF military power are found, not IN the
denial OF rs existence, not In dcpnylng
ourselves Of Us protection Ia time OF
pu9iic danger but Ia the civil fcspOn
slbiiiiy Oi officers for acts not justified
BY martial law The rule Is that so
long as the officer does aot transcend
the limits of his jurisdiction IN the
exercise OF discretionary authority. he
cannot be rendered liable unless II be
shown that he maliciuusly abused the
/ power conhded TO him. The Supreme
/ Court has said. "Whlc an Olhccr acts
within the limits OF that discretion the
same law which gives 1t 10 him will
/ protect him Ia the exercise OF Il, but Tor
acts beyond his Jurisdiction, or attend.
| cd by circumstances ol excessive
severity, arising from III will, or dc
PRAYED disposition, or yindicuyc feel.
ings. he can claim no exemption, and
should be allowed none under color Of
his Office, however elevated or however
humble the yiclim.'
Lieutenant Young says: "Ths prin.
clpIe that wide discretion be gwen TO
military officers IN circumstances Of
danger Is based upon facts that action
must be prompt aud decisive, and that
Information b. often meagTe and mis-
leading. The soldier who acts amid the
noise aud danger, the uncertainties and
perplrNiles OF the field OF acton, must
not be iuiged by facts as they appear IN
the calm Judicial atmosphere Of the
iorum.'
The Supreme Court Of the United
States also declares that they "knew OF
no case In England OF this country
where Il was held otherwise than that 4
public officer acting from sense Of
duty IN a matter where he Is required
TO exercise discretion, Is not liable 10 an
action tot an error oi Judgment"
The question whether military
officers duties IN time ui riot are discfc.
tionity b decided m D1nnrckerv,.
solomon; III an officer Is ordered by
the President IN time oi war to arrest a
certain person rs a spy he would act IN
making the arrest merely as a ministerial
uihscL ami II by mistake he arrested
the wrong man he would be liable to an
action, But Il his orders were general
to 80 with a military force INTO an ~,
surTtciontry district ana qucll the In.
suueCuJn he would be COINED with
authority Discretionary, and 10 10, VA urc
judicial
To the well known case wherein Cap.
tam wilkes, q naval officer. inflicted cor.
pOreU Punishment upon sailor. and the
sailor afterwards brought suit against
The officer the supreme Coufl SAID: "A
pub be- uih.gr Invested with certain dis.
DICTIONARY power never mas been Uld
never ahua.d be made ausWcrblr llr
any WIuN, 3D. 200 acting within the scope
80. DIS authority aud rot iulllruCud by
malice, corruption, or cruelty. Aud m
such % critical position bus reasons Tor
action one way VI another are often the
r.ir OF His oNu observation, aud not
susceptible OF t-lhDu proc. on his
part 80 stUtW of ilau.C.Ilu. ii with.
900 Ns jurisdiction, s conferred hv laW,
either on 'sal,s, on iuiy5 OF suJorui.
nate
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