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The use of the generally pub- lished reports (Supreme, Federal, etc.) have been avoided, except in clarifying occult points. Like rare minerals or herbs from some inaccessible Himalaya height, the only value aspired to for them is variety of illustration and ca- pacity for turning the scale in close contests. The ‘‘batratry’”’ of marine insurance could be defined in naval charges as ‘‘disobeying the lawful orders of a superior officer’? (168 U. S. 124; 112 U.S. 506). A recital of facts from the court-martial record of one B. (filed in case 21,216 Court of Claims) will show how far the Navy Department has gone in insisting on obedience to questionable com- mands; i. e., in declaring an act barratrous when seemingly required bylaw. Whether its decision was right or wrong is not implied here. It was made. By applying toit an at- torney’s faculties for generalization, serviceable analogies may be induced which there is no room to unfold here. Being charged with refusing to perform service in the Navy, B claimed that his orders directing him to ‘‘proceed from Washington to’’ the: violation, in California and else- where, of sect. 1467, R. S., were illegal and non-obedience to them demanded by statute. He had been, two years before, tried by the supposed ‘‘court-martial’’ whose illegality is revealed on page 9 of the Cleveland MARINE RECORD, of July rr, 1901, and on the charge mentioned in the RECORD of October 17, 1901, p. 8. Neither charge nor ‘‘court”’ ap- parently supported the sentence, which was to ‘‘retain his present number in his grade for two years’’ (not longer). But Sec. 1467 R. S. enjoined, ‘‘Line officers shall take rank in their respective grades. according to the date of their-com- missions.’’ His objection to participating in the violation of that statute was over-ruled by court-martial, Navy Depart- ment and President without remark, so that the disallowed objection isthe measure of the decision. Had it been al- lowed, the Judge-Advocate-General of the Navy would have been convicted of inflicting illegal punishments. No flaw is perceived in the over-ruled argument, which follows here: “By reference to the Navy Register it is evident that the accused is forbidden to take rank according to Sec. 1467 Rev. Stat. He has.shown, and it has not been answered, that the ‘court’ which, in effect, ordered him to do duty _ thereafter in a lowered position, was really no court, a mere body of officers. Even if the ‘court’ were valid, its decree would be the edict of a subordinate tribuual, directly con- trary to the mandate of that law-making power from which this tribunal gained any power whatever. An officer’s com- mission is given him by the President. His position de- rived from that commission is fixed by Congress, and no subordinate power like a Secretary: and his court, can re- verse or undo legally the action of the transcendent au- thority to which they are subordinate. The statute fixing rank (Sec. 1467) exists today. The act of June 17, 1878, adds, ‘The rank of officers shall uot be changed except in accordance with the provisions of existing law, and by and with the consent of the Senate.’ It is admitted that no change in the place of the accused has been made ‘with the adyice and consent of the Senate.’ Therefore, he has been put out of an office whose ‘rank’ is ‘according to the date of -his commission,’ and put in another far below it in position, and told todo duty there. If any member of this court were suddenly deprived of his rank and degraded and then told to do duty in his new position, would he regard such orders as legal? Winthrop on Mil. Law (ist ed.) p. 817: ‘Lawful command. The word lawful goes to point to the conclusion affirmed by all the authorities that a command not lawful may be disobeyed, no matter from what source it proceeds,’ ‘‘The commission is a contract; on the one hand he owes duties, on the other there is due him privileges. Relation to the government is one thing; toa mere agent of that government, such asthe Secretary of the Navy, another. To deprive of rank, dignity and station is to take away his old commission and thrust upon him a new one of another date. From the latter he, of course, owes no duties to the one who thrust it upon him, never having accepted it. During this period of usurpation his old commission, of an- other date, becomes latent, and his duties to the govern- ment are held in abeyance, until he is allowed to exercise his real commission, just as if he had temporarily resigned or temporarily exercised. no commission. A mere agent of the government cannot, as far as possible, oust him from his poem ee and at the same time claim duties to him from that. ; ‘The great lawyer at the head of the Navy Department would recognize this logic, if the court will give the accused an opportunity to go'there before final action.’’? (No such opportunity was given). Harwood on Naval Courts, p. 7: ‘Though the citizen becomes a-seaman or soldier, he is nevertheless a citizen.’ Dig. J. A. G. 468: ‘The number of an officer in the list of his grade is not an incident of his rank, but of his appointment to cffice, as conferred and dated.’ ”’ Whether or not B was justified in disobeying his orders to collide with Sec. 1467 R. S. was eliminated by the fact that he never disobeyed them. He reported,. en route, to the Navy Department that ill health was the cause of his delay between Cincinnati, O., and Mare Island, Cal.; that this in- capacity resulted from exposure received in the line of duty, and that it disabled him from performing ‘‘duty’’ at sea, fortifying this report with the proper physician’s certificate, No report by him was ever charged to be untrue. He was convicted on the ground that ‘‘being -physically able to travel,’? he refrained from subjecting the United States to the useless mileage expense of further progress from Wash- ington to Mare Island, Cal., and the mileage expense of orders home or to sick leave. All this was put in evidence by the United States, together with theadded fact that he did not make the delay and de- viation in his journey (via Cincinnati, New Orleans, Los Angeles) except with the tacit permission of the Navy De- partment, which declined to order him otherwise, although Binvited instruction by constantly keeping it informed of his address, The government’s evidence also established the fact that no rebuke would have followed but for a sup- posed ‘‘disrespectful”’ letter asking a court of inquiry to de- cide on the legality of orders incidentally compelling an in- evitable violation of Sec. 1467 R.S. Itis this letter which is referred to in the remainder of B’s argument: “The accused is unable to defend himself against the allegation that the letter in the 2d specification of Charge III was disrespectful, for the reason that he does not see what is complained of in the letter. If he could have written such, his motive would have been, in doing so, to draw a parallel between the infliction of punishment by flogging, in viola- tion of art. 49, sect. 1624 _U. S. Rev. Stat., and the infliction of punishment by degrading in rank, in violation of another, sect. 1467, of the same Revised Statutes. The placing him on duty in a lowered rank in violation of this statute would be equivalent to prolonging this illegal punishment, for only while on duty in the Navy would he be subject to the inci- dents of working, as it were, under a new commission as en- sign, subsequently dated; his own being in abeyance. The Secretary of the Navy represents the fountain of discipline in the Navy. Yet even he would not submit, nor advise others to submit, to the illegal punishment of flogging. Why should he advise a subordinate to submit toa punish- ment which, when brought to his notice, is equally a contra- vention of the statute? “Any general power which a former court-martial may have of inflicting punishment, under a. general statute, is modified by statutes which give laws for the Navy, that the officers thereof, cannot, by sentences of their own, overrule. Inasmuch as the accused’s rank has not been changed ‘by and with the advice and consent of the Senate’ he does not see how the Secretary has the power to prolong the penal consequences of: his court-martial by displacing him from the position the law gives him, and putting him in another, where he will be always at least liable. to feel the effects of it, whenever on duty. As the ‘disrespectful’ (?) letter states, the accused, when he received a commission from the President dated July 2, 1882, did, in accepting it, not only accept the office of ensign, but also one of more limited sphere, an office whose rank and degree was fixed by statute. Displace the accused from that, and where do you find his obligations to appear on the Navy Register anywhere else? The latent rights which appertain to his commission he still holds, and refuses to relinquish. But the fact that he has a right tosomething else than he gets, does not render him under obligations to accept what he gets. It seems to the accused that it would have been wise to have left the decision of this point to the civil courts, where it is now pending, and to have authorized him to be present to assist at such trial, but since it has been insisted that a naval court should decide this legal point, which is a new one, he can only strive to make it clear to them. ‘‘An order can be unlawful in more ways than one. When the term is. used as it is commonly, one thinks of some unlawful order, to commit murder or the like. But it would be equally unlawful, as unauthorized, for the Paymaster- General, or Chief of Bureau of Ordnance, to detail officers to sea. . “It would be unlawful for the Secretary of the Navy to give an order fair enough on its face, to one who was really a civilian, and outside of the Navy altogether. It seems to the accused equally unauthorized for the Secretary of the Navy to tell a citizen to take a place in the Navy other than the place to which he has a right under the laws of Congress. If he cannot do that, how can he tell him to do duty under those illegal conditions? “Tt must always be remembered that the Navy is not an absolute monarchy, as it were, but rather a limited one. If trouble arises from an officer’s refusal to obey an illegal order whose fault is it, the higher authority who broke the law, and gave the order; or the subordinate victim? “Op. J. A. G. of the Army p. 9: An officer is not punish- able for disobeying an unlawful order. P. 10:: A member of a post band who refused to obey an order of the post commander directing a band to play in a town in the neigh- borhood of the post for the pleasure of the inhabitants was not chargeable with a military offense; such an order not being an lawful one in the sense of the article. In G. C. M. O. 130, Dept. of Dakota, 1879, a soldier was ‘convicted of disobedience in refusing to assist in building a private stable for an officer: the finding was disapproved on the ground that such an order was not lawful.’ Dig. J. A. G. 208: ‘A soldier was ordered to march with a detachment across Texas border into Mexico in pursuit of marauding Indians. Held in 4:Op. At..Gen. p..55. ‘Whether a disobedience of an order to march for such a purpose within the territory of a foreign nation with which the world was. at peace and which had not authorized an entering of its domain of armed forces of the U.S., would be a disobedience of a ‘lawful’ order, and a military offense, was very questionable.’ On this B. was ‘“‘dismissed from the naval service’’, and the Secretary of the Navy triumphantly acquitted of having given an illegal o~der. GEORGE F. ORMsBY, Washington, D. C. e__ 2 2O0->—00r OO Defects in Ship—Injury to Stevedore—Negligence.— There is negligence rendering a ship liable toa stevedore in- jured while taking off the covers of a hatch by a section falling in because of an athwartship being sprung out of line, so that when one of the covers was taken off it failed to support the remaining covers; there having been no in- spection: of the hatch for years, and the defect being one that an inspection would have shown.—The Red Jacket, 110 Fed. Rep. (Uv S.) 224.