Bushrod Washington and the Nuremberg Principle

I came across this interesting passage in a jury charge given by Justice Washington, which speaks for itself in light of so many crimes that have been committed since:

The only remaining question of law, which has been raised in this cause, is, that the prisoner ought to be presumed to have acted under the orders of his superior officer, which it was his duty to obey. This doctrine, equally alarming and unfounded, underwent an examination and was decided by this court, in the case of general Bright. It is repugnant to reason and to the positive law of the land, No military or civil officer can command an inferior to violate the laws of his country, nor will such command excuse, much less justify the act. Can it be for a moment pretended that the general of an army, or the commander of a ship of war, can order one of his men to commit murdcr, or felony ? Certainly not. In relation to the navy, let it be remarked, that the 14th section of the law, for the better government of that part of the public force, which enjoins on inferior officers, or privates the duty of obedience to their superiors, cautiously speaks of the lawful orders of that superior.

Disobedience of an unlawful order, must, of course, be dispunishable, and a court martial would, in such a case, be bound to acquit the person tried upon a charge of disobedience. I do not mean to go further than to say, that the participation of the inferior officer in an act which he knows or ought to know to be illegal, will not be excused by the order of his superior.

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1 Response

  1. Joe says:

    “dispunishable”

    This is a good principle but realistically it is likely to be narrowly applied — some buck private somewhere isn’t going to try to analyze the justice of an order, especially since the military often in the heat of the moment robs one of civility in times of war and so forth. It is somewhat more likely to have force for officers.

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