tended to any glaring impropriety, such as drunkenness on parade, that properly comes under the head of disor ders. It was decided by high authority in the British service, that circumstances may occur even upon parade, to justify a junior officer in taking upon himself the strong responsibility of placing his commander in ar rest; such a measure must alone rest upon the responsibility of the officer who adopts it, and there are cases wherein the discipline and welfare of the service require that it should be assumed.

By virtue of the 78th article, "non-commissioned offi cers and soldiers charged with crimes, shall be confined until tried by a court-martial, or released by proper authority." A distinction necessarily exists between the nature of the arrest of officers and of soldiers the same security for his appearance on trial not existing in the two cases. By the general regulations of the army, non-commissioned officers are not to be sent to the guard-room and mixed with privates during confinement, but be considered as placed in arrest, except in aggravated cases where escape may be apprehended.* With private soldiers, confinement is the usual mode of securing their persons.

The 80th article ordains that "no officer commanding a guard, or provost marshal, shall refuse to receive or keep any prisoner committed to his charge by an officer belonging to the forces of the United States; provided the officer committing shall, at the same time, deliver an account in writing, signed by himself, of the crime with which the said prisoner is charged."

The requirements of this article are unmistakable, and

* Par. 78.

the proviso would seem to admit the right of the officer of the guard, to reject a prisoner when no written statement of the crime charged was submitted. But the interpretation given in the English army, seems more in unison with the demands of the service and the dictates of common sense. In that service, the omission to make the written statement, or deliver in a crime as it is usu ally termed, would not justify the rejection or release of

prisoner, or exempt the officer of the guard from liability to the penalties attached to the 81st article. It may sometimes be impracticable to make the written statement on the instant, and certainly the committing officer should be allowed reasonable time in which to prepare it; and as the general regulations* expressly direct that all prisoners under guard, without written charges, shall be released by the officer of the day at guard-mounting, no person confined without cause could suffer, at the worst, the inconvenience of durance vile for a longer period than twenty-four hours. To prevent illegal confinement is indubitably the intention of the article, and the safe rule to be observed is, not to receive a prisoner without a written statement, unless he is amenable to military law, and is committed by an officer who is well known to the officer of the guard as having authority to do so.

The 79th article declares that "no officer or soldier who shall be put in arrest shall continue in confinement more than eight days, or until such time as a court-martial can be assembled."

The object and intent of this article is to deprive the commanding officer of the right of imposing confine

*Par. 216, ed. 1857.

ments, except for trial, beyond the period of eight days. It allows time for the examination of the facts and circumstances of his case, so as to decide whether or not it be one that demands judicial investigation. The pris oner may be released at any time short of the term of eight days, without trial, but the article is decided that confinement beyond that period must continue until a court-martial can be assembled.

It has long been a settled principle both in the British service and our own, that no officer has a right to demand a court-martial on himself or others the authority competent to order the court being the judge of its necessity; nor after having been arrested has he a right to demand a trial, or persist in considering himself in arrest after he shall have been released by proper authority. If, however, the officer should think himself ag grieved by the arrest, or by charges that might have been preferred against him and afterward withdrawn, he may in either case seek redress under the 34th article of war.

CHAPTER VI.

CHARGES AND SPECIFICATIONS.

A Military Charge is a plain, brief, and certain narrative of the offence committed, and of the necessary circumstances that concur to ascertain the fact and its nature.* It is of two parts: the charge, and the specifications. The charge designates the crime, or offence in law, as mutiny; the specification alleges or specifies the act, with time, place, and circumstance.

Charge. "The commander who prefers a charge may, in the exercise of a just and legal discretion, when the act may fall under different articles of war, elect under which to charge it, or may charge it variously as in the several counts of an indictment. But under whatever article a charge is laid, the specification to it must state the act in terms appropriate to that article, and not in terms which necessarily refer to some other article; and where the act cannot be stated or described except in the language of a particular article of war, the charge is confined to that article. In this regard, the rule of pleading is not merely technical, but is essential to the legal statements of offences. Some writers on military law have laid the rule down so strictly, as to disallow any resort to the general article in cases of offences specified in the other articles. "When an offence is of that specific

Lord Hale.

quality as to be reducible to a particular article of war, to which a known and distinct penalty is attached, it must be prosecuted under such article, that the intent of the law and the purposes of justice may be answered." Samuel and Hough. They consider that in such cases the law restrains the discretion of commanders and courts, and that the general article "holds out not a substitute but a substantive course of prosecution for offences not otherwise declared."

If the rule does not obtain so strictly in our service, still a specification appropriate to a particular article only, cannot be laid under the general article to evade the penalty prescribed in the particular article."*

For instance, an offence may be charged under the general article, the 99th, and triable by a garrison courtmartial, when the specification sets out in distinct terms an act in violation of the 46th article of war, a capital of fence, and only triable by a general court-martial. This may be done to avoid the consequences that follow the violation of the particular article, which course of procedure is very properly prohibited by the above decision. When, therefore, the specified facts and circumstances clearly point to a particular article, with a distinct penalty attached, the prosecution must be had under that article, and the charge should be expressed in the terms used therein; but where the offence alleged is a mere disorder or neglect, not specifically provided for, it must be charged under the general article as "conduct to the prejudice of good order and military discipline."

The settled usage of military courts permits a prisoner

*G. O. No. 18, war department, July 23d, 1859.