of Captain Barnes, of the 89th regiment, which states that "his royal highness has not considered it expedient to give effect to the recommendation of the court in the prisoner's behalf, further than to mitigate the term of cashiering into that of dismissal from his majesty's service."*

This distinction is held to be correct by many in our service, and with reason, as our articles have been drawn, sometimes bodily, from the British mutiny act and articles of war. Our articles, however, make no such distinction in terms, nor with regard to the greater or less gravity of offences for which these are imposed,— wherever future disability to hold office is intended, such intention is clearly expressed. In framing the law, cashiering and dismissal were denounced in certain articles, because contained therein when copied from the British as they undoubtedly were, and the difference in meaning, therefore, can only be based on the custom of the British service.

The legal punishment for soldiers by sentence of a court-martial, according to the offence, and the jurisdiction of the court, are: death; confinement; confinement on bread and water diet; solitary confinement; hard labor; ball and chain; forfeiture of pay and allowances; discharges from service; and reprimands. Solitary confinement, or confinement on bread and water, shall not exceed fourteen days at a time, with intervals between the periods of such confinement not less than such periods; and not exceeding eighty-four days in any one year.t

Non-commissioned Officers may be reduced to the

* Simmons, p. 291.

+ General Regulations, par. 895.

ranks by the sentence of any court-martial, and in addition are subject to any of the above-mentioned punishments which may be awarded to soldiers. However, where a non-commissioned officer is to be punished by confinement, hard labor, or ball and chain, he must first be reduced, as it is contrary to the principles of the service, and derogatory to the dignity of their position, to cause non-commissioned officers to be thus punished. The punishments, therefore, which a court-martial may sentence a prisoner to suffer, are clearly understood, and are derived from express statute or the custom of war. Should it happen that an offence falling within the jurisdiction of a court-martial, be not provided for by a special penalty, but left to be determined by the discretion of the court, such sentence must be in accordance with the common law of the land, or the custom of war in like cases; a departure from this would make the sentence unusual, and as such, unlawful.*

*De Hart, p. 195.

CHAPTER V.

ARREST AND CONFINEMENT.

The 77th Article of War directs that "whenever an officer shall be charged with a crime, he shall be arrested and confined in his barracks, quarters, or tent, and deprived of his sword by the commanding officer," thus describing the preliminary steps to be taken for the prosecution of offences. "And any officer who shall leave his confinement before he shall be set at liberty by his commanding officer, or by a superior officer, shall be cashiered."

Although the law makes no mention of any difference in the nature of arrests in order to trial, a difference is established by the custom of the army according to the degree and measure of the offence. An officer accused of a capital crime, or any offence of which the penalty is so severe as to afford a natural temptation to escape from justice, ought to be detained in a state of confinement, as secure as the closest civil imprisonment. If the offence is of a lighter nature, the presumption is, that the officer whose character is thus impeached must be solicitous to obtain a judicial investigation of his conduct,* and he is therefore, either placed in close arrest, that is, limited to his quarters or tent; or allowed to be in arrest at large, that is, with limits ex

* Tytler.

tended to the garrison, camp, or other defined boundaries.

The general regulations provide that in ordinary cases, and where inconvenience to the service would result from it, a medical officer will not be put in arrest until the court-martial for his trial convenes. They also provide that officers are not to be placed in arrest for slight offences, and that close confinement is not to be resorted to unless under circumstances of an aggravated character.

The depriving an officer of his sword, as directed in the article, is generally omitted, but is, nevertheless, considered to have taken place, and it is invariably the custom for an officer in arrest to appear without his sword. The arrest is usually imposed by the commanding officer himself, or through the ministration of his staff officer, and their mere verbal order to that effect is sufficient to prevent him from exercising even the minor functions of his office.

Breach of Arrest is described by the article, as leaving his confinement before he shall be set at liberty by proper authority, and cashiering is denounced as the penalty, leaving to courts-martial no discretion whatever. The variety of opinions that have been held as to the exact meaning and import of what constitutes breach of arrest, are not founded upon the clear and explicit words of the statute. Cashiering is affixed to the of fence of "leaving his confinement," in express terms, and to no other offence; and not even by implication can any other misdemeanor be presumed as flowing from the plain wording of the law. The assumption of command, wearing a sword, or visiting officially his commanding

*Par. 222, 223 and 224.

officer unless sent for, while in arrest and within his limits, are evident improprieties prohibited by the general regulations of the army, and therefore liable to punishment; but they are not breaches of arrest, unless in the words of the article, he "leaves his confinement before he shall be set at liberty by his commanding officer, or by his superior officer." The practice of the British service upholds this view of the question. A case is cited, in which "Lieutenant Naylor was cashiered for breaking his arrest; and Lieutenant Williams was cashiered for, that he, when commanding a guard over a prisoner committed to his charge, did allow such prisoner to leave his place of confinement."*

The 27th article enacts that all officers of what condition soever, have power to part and quell all “ quarrels, frays, and disorders," and to order officers in arrest, even though the latter be of superior rank. "Officers of what condition soever," includes non-commissioned as well as commissioned officers; and the law requires implicit obedience on the part of all those who, by their conduct, render themselves amenable to the exercise of such extraordinary powers by a junior. The assumption of a present command by the inferior, is tolerated rather than that the military state should be endangered by violent evils, which, if not instantly repressed, might result in irremediable mischief. This assumption is not, however, allowed to continue longer than the necessity itself exists, that is, until the superior officer of the parties arrested can be made acquainted with the circumstances.t

The authority of this article can and should be ex+ O'Brien, p. 108.

*Simmons, p. 120.