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Officer on guard and provost marshal to receive prisoners.

soldier, to give in a written crime.

ordered that serjeants are in no case to be sent to the guard room and mixed with the privates during confinement, but to be considered as placed under arrest.'

The hundred and eighth article prescribes, " that no officer commanding a guard, or provost marshal, shall refuse to receive or keep any prisoner committed to his charge by any officer

belonging to the forces; which officer shall, at Oficer confining the same time, deliver an account, in writing,

signed by himself, of the crime with which the said prisoner is charged.” The provisions contained in this article are further enforced by the fifty-sixth and fifty-seventh articles. The fifty.

. sixth, in connection with the sixty-ninth, declares the penalties to which the commander of a guard

is liable for releasing a prisoner without authority, The commander or, suffering him to escape.

The fifty-seventh report prisoners, article guards against the undue confinement of

soldiers, by requiring a written report to be made of the prisoner's name and crime, within twentyfour hours after his commitment (or, if the guard should be relieved prior to the expiration of twenty-four hours, immediately on the relieving of the guard) to the power competent to direct what steps may be necessary thereon ; that is, to the officer commanding the garrison, if a garrison guard; or to the officer commanding the regiment, if a regimental guard.

It may be observed, that the hundred and eighth will not justify article enjoins a duty, not only on the officer

commanding a guard, or the provost marshal, - but also on the officer committing a prisoner to their custody. In the first place, a refusal to

of guard must

The want of a proper crime

(1) Gen. Reg. p. lll.


receive a prisoner is provided for ; in the second, the officer is required to deliver in an account, in writing, of the crime with which the prisoner is charged. It is imagined that the parts of the article, or rather the obligations created by it, are distinct. Omitting to deliver in a crime, as it is usually termed, will not justify the rejection, much less the release, of a prisoner, or exempt the commander of the guard from liability to the penalties attaching to an infraction of the fiftysixth article ; though such an idea has prevailed in the army to some extent. It is possible that an officer committing a prisoner to custody, may have grounds whereon to justify or extenuate the omission of the duty attaching to the act. It is sufficient for the commander of the guard, that the prisoner is amenable to military law, and that the person confining him is known and respon

the immediate presence of an officer confining a prisoner may be required elsewhere, and circumstances may not admit of delay. Indeed, numerous inconveniences, and such as will readily present themselves to the imagination of every military man, must arise to the service, if the reception of a prisoner invariably depended on the delivery in writing of an account of bis offence. The case perhaps is different, and the same reasoning may not apply, as to retaining a prisoner, without a crime, inore than twenty-four hours, or beyond the time when the report of the guard may be delivered, or forwarded, to a superior officer, and the prisoner turned over to a relieving guard ; and yet the commander of a guard, instead of taking upon him the responsibility of the release of a prisoner, would act more

sible ;

The Mutiny Act provides for the

not in barracks.

prudently and more in unison with the custom of the service, if he were specially to report the name of the prisoner, with that of the officer who confined him, stating that no crime has been received. It would then become the duty of the superior officer to call on the committing officer for explanation ;-to order the release of the prisoner ;-or to take such steps as may appear expedient.

Besides the ordinary modes of securing offenappretension of ders against military discipline, the mutiny act

provides for the apprehension and imprisonment of deserters by the civil power,' and amongst other most judicious and practical alterations of

the twenty-seventh section, it is now enacted and confinement that whenever troops are called out in aid of the of soldiers when civil power, or are stationed in billets, or are on

the line of march, that the commanding officer may require, by a written order to that effect, the keeper or gaoler of any prison or lock-up house, to receive into his custody any soldier for a period not exceeding seven days.

Breaking arrest, in an officer, is punished, on conviction, by cashiering peremptorily. Breaking confinement, in a non-commissioned officer or soldier, is punishable at the discretion of the court before which the offence may be tried.?

The general regulations of the army point out, that “an officer, who may be placed in arrest, has no right to demand a court martial upon himself, or to persist in considering himself under the restraint of such arrest, after he shall have been released by proper authority, or to refuse to return to the exercise of his duty;"

(1) Mut. Act, Sec. 22. (2) 22 and 37 Arts. War.

Breaking arrest, how punished.

An officer, if released from arrest, has necessarily no right to insist on trial,

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they further declare : “it by no means follows
that an officer, conceiving himself to have been
wrongfully put in arrest, or otherwise aggrieved,'
is without remedy ; a complaint is afterwards
open to him, if preferred in a proper manner, for
which provision is made by an article of war.
The terms of this regulation are extracted from unless a charge
an order of his royal highness the duke of York, preferred.
dated 1st February, 1804, in which it is also
stated, that an officer cannot insist upon a trial,
"unless a charge is preferred against him.” The who may
authority competent to direct the release of an arrest.
officer must be the officer who imposed the arrest,
or the superior to whom it may have been offi-
cially reported. It is imagined, that an officer
could not, under any circumstances, persist in
considering himself under the restraint of an
arrest, when released'therefrom by the superior
officer who imposed it; nor could he decline to
return to the exercise of his duty; but he may
remonstrate, and the custom of the service,
supported as it is by the above quoted order of
his late royal highness the ever to be lamented
duke of York, would certainly justify the suppo-
sition that charges having been exhibited against
an officer, he could not, on representation to the
proper authority, be refused a trial by a court Improper to
martial, or such an explanation as might be disposed' or
satisfactory to bis feelings. A trial under these
circumstances would be an obvious exception to
the rule ordinarily acted on, that courts martial
may not enter upon charges which have been
extra-judicially disposed of already.
(1) See page 148.

(2) Gen. Reg. p. 244.
(3) See case of captain Halliday. Chap. x. Arraignment.

prefer charges summarily.



Case of a soldier, how disposed of without trial,

With a view to punishment, the idea of trial by a court martial being abandoned, commanding officers are restricted from placing a soldier in close confinement for a longer period than fortyeight hours ;' and, in accordance with the spirit of the order which enforces this limitation, it is incumbent on commanding officers, generally speaking, to determine within that period as to the measures to be taken, and “the commanding officer not having any intention of bringing the offender to a court martial, should order such reasonable punishment as it is within his competence to award; and with regard to this, it would be inconsistent with subordination that he should admit of the right of option or appeal, although he

may, if he think proper, vindicate the justice of his first order, by resorting to the alternative of a court martial.”2

The practice of allowing a serjeant to escape trial by court martial, by resigning his situation, is forbidden. “ It is also irregular to allow an offender the option of such punishment as com

manding officers can inflict at their own discretion, except in cases or of standing a court martial.” An exception

to this regulation, which, as a general rule, is most essential to the maintenance of discipline and upholding the authority of the commanding officer, arises from the fifty-second article of war, which directs that a soldier who shall not have satisfactorily accounted for his absence without leave for any period not exceeding five days, and who, in addition to any other punishment within

Option of trial
is not permitted,

where pay may be forfeited,

(1) Gen. Reg. p. 111, and see page 137.
(2) Gen. Reg. p. 115.

(3) Gen. Reg. p. 114.
(4) See Circular, 14th April, 1837. Addenda, Gen. Reg. p. 25.

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