The case is important, not only because of the gravity of the charges and the dignity of the officer arraigned, but also because of the fact that it involves a principle which lies at the very foundation of all discipline and of all efficiency in military operations - the principle of military obedience. A standard author, treating on this branch of jurisprudence, says:
Hesitancy in the execution of a military order is clearly, under most circumstances, a serious offense, and would subject one to severe penalties; but actual disobedience is a crime which the law has stigmatized as of the highest degree, and against which is denounced the extreme punishment of death. (De Hart, p.165.)
The same author continues:
In every case, then, in which an order is not clearly in derogation of some right or obligation created by law, the command of a superior must meet with unhesitating and instant obedience.
So vital to the military systems is this subordination of will and action deemed, that it is secured by the most solemn of human sanctions. Each officer and soldier before entering the service swears that he "will observe and obey the orders of the officers appointed over him:" and it is from this, probably, that the offense of disobedience derives much of the depth and darkness of the criminality with which it is stamped by the Articles of War. Obedience, indeed, is the very jewel of the soldier's life. It adorns him more, even, than laurels, which are so often plucked by unholy hands. The soldier who has given to the order of his superior officer a prompt, an earnest, a heartfelt support, has triumphed in the field of duty, even though he may have fallen on the field of arms.
The offenses for which the pleading and testimony arraign the accused are the very gravest that a soldier can possibly commit, being neither more nor less than the willful violation of the orders of his commanding general in the midst of momentous and perilous military movements, and the shameful abandonment of a struggling army which it was hid solemn duty to support, in the very presence of the enemy, and under the very sound of his artillery. The court was careful to give to the accused the benefit of all well-founded doubts that arose in their minds, in reference either to the fact of disobedience or in reference to the measure of criminality that prompted it, and hence they found him not guilty of the fourth and fifth specifications of first charge; and, in the same spirit, the fourth specification of second charge was withdrawn. While, however, the court left that of crimes such as these no officer should be convicted but upon the clearest and most convincing proof of his guilt, they must also have left that the honor of the profession of arms and the most enduring of our common Government and country imperatively demanded that there should be no acquittal when that proof had been made.
To the PRESIDENT.
WAR DEPARTMENT, PUBLICATION OFFICE WAS RECORDS, 1861-'65,
Washington, August 7, 1886.
The ACTING JUDGE-ADVOCATE-GENERAL U. S. ARMY:
COLONEL: In order that this office may comply with the provisions of the act approved July 31, 1886, in relation to the trial of Fitz John