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CHAPTER VIII.

Preliminaries to trial by Court Martial.

“WHENEVER any officer or soldier shall commuit Arrest and

confinement, a crime deserving punishment, he shall, by his commanding officer, be put in arrest, if an officer ; or, if a non-commissioned officer or soldier, be confined until he shall be either tried by a court martial, or shall be lawfully discharged by a proper authority; and no officer or soldier, who shall be put in arrest or confinement, shall Time limited. continue in his confinement more than eight days, or until such time as a court martial can be conveniently assembled.” This provision is farther enforced by the fifty-ninth article, which, in connection with the sixty-ninth, renders an officer liable to cashiering, who “ shall unnecessarily Penalty on detain any prisoner in confinement without bring- prolonging, ing him to trial.” The effect of this article may be ascertained by considering the proof which may be necessary to maintain a charge under it : it would be sufficient to prove that the prisoner had been confined for a period exceeding eight days when a court inartial might have been conveniently assembled, without adverting to the culpability of the individual confined; but, if a charge were grounded on it, for detaining a prisoner in confinement for any time less than

(1) 107 Art. War.

reflection.

Arrest of an officer,

eight days, it must be proved that the offence imputed to the prisoner was of a nature not admitting or justifying a trial, or that the com

manding officer was aware of his innocence, and, unless to induce therefore, the detention unjust. A commanding

officer may act for the advantage of the service, for the furtherance of discipline, and with lenity towards a prisoner guilty of a military offence, by keeping him for a time in suspense as to the ultimate steps to be taken respecting him, and finally by deciding on his release without trial. The articles of war appear to provide for such cases, by the permitting, to the extent of eight days, a confinement at the discretion of commanding officers.

An officer is put in arrest either directly by the officer who orders it; more generally by the ministration of a staff officer, an officer of the general staff when the arrest is directed by a superior officer and not through the channel of the commanding officer, and by the adjutant or a field officer of the regiment, when ordered by the commanding officer : arrests are occasionally imposed by the intervention of the provost marshal and, more rarely, notified even in public orders.

On being placed in arrest, an officer resigns his sword to the person imposing it ; if this form be sometimes omitted, it is considered, nevertheless, to have taken place, and hence originated the custom, which is invariably observed, that an officer in arrest cannot wear a sword.

The arrest may be either close, that is, limited to an officer's quarters or tent; or at large, extended to the garrison, camp, or other defined

Form of imposing.

Degrees of.

limits, within which the officer is allowed to be seen; be cannot, however, dine at his own or any other military mess,' nor appear in any place of public amusement.

. Officers in arrest are On parole. ordinarily considered on parole, but when accused of having broken their arrest, or of any heinous offence, the penalty of which might induce a desire to escape from justice, they have been placed in custody of the provost marshal, or in charge of a sentry. An officer, by being placed in charge of a provost marshal, or by having a guard placed over his quarters, is not thereby freed from the responsibility of arrest; nor can an officer commanding such guard permit the officer in his charge to leave his place of confinement under the impression that the security of his prisoner is all that is required of him.'

A court martial has no control over the nature Court Martial of the arrest of a prisoner, except as regards his the nature of. personal freedom in court; they cannot, even with a view to facilitate his defence, interfere to cause a close arrest to be enlarged. The officer in command is alone responsible for the discharge of this duty, and has been justified by his majesty, on refusing to accede to the suggestion of a court martial to grant a prisoner such indulgence as might facilitate the examination of witnesses, and thereby enable him to enter earlier on his defence.

cannot control

(1) G. 0. on the promulgation of the general court martial on captain Halliday, 10th regiment.

(2) G. 0. Sept. 13th, 1831, by lord Dalhousie, when commander in chief in India, on the promulgation and remission of the sentence of courts martial on lieutenants Naylor and Williams, of the 8th N.I. 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 (lieut. Naylor,) to leave his place of confinement.

(3) G. O. No. 234.

A senior officer in certain cases liable to arrest by his junior,

A senior officer is liable to arrest by his junior, not only in cases of quarrels, frays and disorders,' which is specially enjoined by the articles of war, but for any glaring impropriety, as drunkenness on parade, which is most clearly evinced by the order accompanying the publication of a court martial held for the trial of brevet lieutenant colonel Alexander Hog, major in the 55th regiment of foot, " for being drunk on duty when under arms inspecting the guards and picquet of the 55th regiment of foot, at Plymouth, on or about the 9th of October, 1819.” The court, after the finding and sentence, whereby lieutenant colonel Hog was found guilty, and sentenced to be cashiered, proceeds, “ The court conceives that it would be a dereliction of duty, were it to pass unnoticed so extraordinary and (as far as the experience of the court extends) unprecedented an occurrence, as that of a commanding officer being put under arrest, while in the actual command of a regimental parade, by a junior officer

In making this observation, the court does not presume to take upon itself the authority of commenting upon so delicate and highly important a point of military discipline, further than to remark, that the circumstances detailed in evidence upon the proceedings of the court, were not, in their nature, of that imperious urgency, as to have called for the immediate adoption of so very strong a measure. And further, that it does not appear to the court that captain Elligood, or the officers who were called upon by captain Nicholson to consult upon the subject, were actuated by any spirit of insubordination, private pique, or malice, towards lieutenant colonel Hog; but were influenced in their conduct by feelings of zeal for his majesty's service, and the immediate honor of the regiment.' His royal highness was pleased to confirm the finding and sentence, but permitted lieutenant colonel Hog to receive the regulated value of his commission, and was further pleased to command it to be signified, that though the observations of the court upon the nature of lieutenant colonel Hog's arrest are no doubt founded upon the best motives, yet it is impossible to let them go forth to the army, without explaining that the court are in error when they suppose that circumstances may not occur, even upon a parade, to justify a even on parade; junior officer in taking upon himself the strong responsibility of placing his commander in arrest : 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. In but previous the present instance, the sentence of the court condemned. appears to afford a full justification of captain Elligood's conduct in the placing of lieutenant colonel Hog in arrest ; though it would have been more regular, if that officer had continued to rest upon his own responsibility, without calling a meeting of his brother officers to support it by their opinion.”

(1) 106 Art. War. (2) G. O. No. 453.

of the corps.

A non-commissioned officer or soldier is con- Arrest of nonfined in charge of a guard or sentry; but, by the office soldie custom of the service, senior non-commissioned officers were frequently placed in close arrest, and this measure, as to serjeants, is now positively enjoined ; the general commanding in chief having

consultation

private soldiers.

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