made his escape from the fort. Fair, a corporal, and Jockins, a private, who were on guard duty, were called upon to pursue the prisoner. The order as given was in substance as follows: Pursue the prisoner, if you sight him summon him twice; and if he does not halt fire upon him, and fire to hit him. About dusk they halted Morgan on a highway; he turned and ran across a field; they followed close after. Fair gave the order to fire and Morgan fell mortally wounded. For the killing of Morgan, Fair and Jockins were tried by courtmartial, and found not guilty. Next they were indicted for manslaughter in the Nebraska Court.

MUNGER, the District Judge, ordered their release: The law is that an order given by an officer to his private, which does not expressly and clearly show on its face its illegality, the soldier is bound to obey; and such order is his full protection. The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in an army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as he may consider them valid or invalid, the precious moment for action would be wasted. Its law is that of obedience. No question can be left open of the right to command in the officer, or of duty of obedience in the soldier. While I do not say that the order given by Sergeant Simpson to the petitioners was in all particulars a lawful order, I do say that the illegality of the order, if illegal it was, was not so much so as to be apparent and palpable to the commonest understanding. If, then, the petitioners acted under such order in good faith, they are not liable to prosecution.

This decision certainly commends itself to common sense. The position of the soldier is so hard that it cannot be possible. Otherwise this often would be the alternative for the soldier: if he refused to obey a reasonable order to be shot for disobedience; if he killed in pursuance of that order to be hung for murder. It may be urged that this is always more or less the situation in all administration under the common law system, only the present case is more dramatic than the ordinary case. There is, however, distinction between this case and the former case. In the first case the officer exceeded the discretion vested in him in his action; in the second case the officer acted within the discretion vested in him. That makes the whole difference. In crucial cases there will be this antinomy between conflicting duties. If it be granted that when there is a ministerial duty to perform a certain act the law of the land must be obeyed, in that case there is no conflict. And if it be granted that where there is a discretionary duty to perform a certain act the law of the administration should be obeyed, in that case also there is no conflict. That is the legal solution of this difficulty then. In the first case there was no place for the internal law left by the external law; in the second there was a scope for the internal law within the external law.1

1 LAW FOR ADMINISTRATION.-Rogers v. Dutt, 13 Moo. P. C. 236; Raleigh v. Goschen [1898] 1 Ch. 73; Mitchell v. Harmony, 13 How. 115; United States v. Lee, 106 U. S. 196; Coblens v. Abel, Woolworth 293; Hendricks v. Gonzales. 67 Fed. 351; Eslava v. Jones, 83 Ala. 139; Lee v. Huff, 61 Ark. 494; Harpending v. Haight, 39 Cal. 189; Land Co. v. Routt, 17 Colo. 156; Raymond v. Fish, 51 Conn. 80; Dowling v. Bowden, 25 Fla. 712; State v. Bell, 9 Ga. 334; Strickfaden v. Zipprick, 49 Ill. 286; Governor v. Nelson, 6 Ind. 496; McCord v. High, 24 Ia. 336; State v. Francis, 23 Kan. 495; Lecourt v. Gas

3. External Law.

The external administrative law as defined deals with the relations of the administration, and of officials, with citizens. External administrative law is thus concerned with almost everything which the government asks of the citizens; and it is concerned with almost everything which citizens ask of the government. These subjects in the large, form the principal subject matter of these lectures. Since in this inquiry is involved the extent of the power of the administration, all the law as to the authority of officers is brought into the discussion. And since in the same inquiry is involved the limitation of the administration, all the law as to the responsibility of officers is brought in issue.

There is one fundamental question: Is the administration in its relations with citizens subject to the same rules of law as govern the relations of citizens among themselves? It has been remarked that under the foreign system of administrative law a special law governs relations with the administration, while in our system of administrative law it has been supposed that there is one law in the land which governs public officers and private citizens alike. It is very simple-this common law view-that action in accordance with legal authorization is legal and the official so acting will always be

ter, 50 La. Ann. 521; Harwood v. Siphers, 70 Me. 464; Magruder v. Swann, 25 Md. 173; Tellefsen v. Fee, 168 Mass. 188; Pawlowski v. Jenks, 115 Mich. 275; Hines v. Chambers, 29 Minn. 7; Newman v. Elam, 30 Miss. 507; Chouteau v. Rowse, 56 Mo. 65; State v. Kruttschnitt, 4 Nev. 178; Ela v. Shepard, 32 N. H. 277; Hann v. Lloyd, 50 N. J. Law, 1; Olmsted v. Dennis, 77 N. Y. 378; Board of Education v. Com'rs of Bladen, 113 N. C. 379; State v. Auditor, 43 Ohio St. 311; Williams v. Schmidt, 14 Ore. 470; Yealy v. Fink, 43 Pa. St. 212; Randall v. Wethersell, 2 R. I. 120; McKinney v. Robinson, 84 Tex. 489; Brown v. Mason, 40 Vt. 157; Board of Public Works v. Gannt, 76 Va. 455; Frazier v. Turner, 76 Wis. 562.

justified; and that action without warrant of law is illegal, and the official so acting will always be considered a private wrong-doer. Without doubt this is the general rule of the common law governing the relations of officials with citizens. This must be, therefore, the first rule of external administrative law.

A strong illustration of the effect of this rule that the circumstance that the act done purports to be under the authority of the government makes out no justification whatever is United States v. Lee, 106 U. S. 196 (1882). This was an action commenced by Lee against Kaufman and others for ejectment of the Arlington Estate. During the war the Lee family had been dispossessed by proceedings which the Lower Court held void. At that stage of the ejectment process the Attorney-General filed in the case a suggestion that these defendants held the premises as public officers acting under the direction of the President of the United States; and that the suit ought not to be maintained. The plaintiff demurred to this suggestion upon the ground that the action was against the defendants as private wrong-doers.

Mr. Justice MILLER delivered the opinion of the court: What is the right as established by the verdict of the jury in this case? It is the right to the possession of the homestead of the plaintiff. A right to recover that which has been taken from him by force and violence and detained by the strong hand. This right being clearly established we are told that the court can proceed no further because it appears that certain military officers acting under orders of the President have seized this estate and converted one part of it into a military fort, and another into a cemetery. It is not pretended as

the case now stands that the President had any lawful authority to do this or that the legislative body could give him any such authority except upon the payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of every one who asserts authority from the executive branch of the government, however clear it may be that the executive possessed no such power. No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.

This is the negative side of the rule, the responsibility of the administration to the external law of the land. The rule has a positive side, the authority of administration from the external law of the land. This depends upon the truism that all action by an officer in pursuance of law is legal; which has this further application, which is of the greatest importance: that all official action in pursuance of discretion vested in the officer by law is action in accordance with laws in whatever way that discretion may be exercised. In such action an officer cannot be in the position of a wrong-doer whatever it be. Without doubt this rule is of great consequence; it is, indeed, at the foundation of administrative law in a country subject to the common law system.

A strong illustration of this rule that the officer cannot be responsible for any action done in pursuance of discretion vested in him by law whatever that action may be is Seymour v. United States, 2 App. D. C. 240 (1894). This was an application for mandamus by the State against the Commissioner of Patents to compel