served upon him within eight days? A copy of the charges preferred might be furnished, but these may be materially altered, or the convening authority may refuse to bring the officer to trial. Again, how can he see that the officer "be brought to trial within ten days?" This rests entirely in the discretion of the convening officer. The commanding officer can, however, unless the provisions of the article are complied with, release the officer from arrest and he is required to do so.

While the article is mandatory and says that under certain conditions the arrest shall cease, an officer would not be justified in considering himself released, if these conditions take place. If he so acted, he would do so at his peril. Article 71 says his arrest shall cease when put in arrest "for the purpose of trial." How can he know the intentions of his commanding officer? It is not essential that the officer or soldier should know why he is arrested. An exception is again made "at remote military posts or stations." Who is to judge of the remoteness which will bring a post under this exception? Certainly not the officer arrested. Again, the arrest shall cease "unless the necessities of the service prevent such trial." An officer in arrest is assuredly not the judge of that.

The 71st Article did not contemplate, it is believed, a release by an officer's own will. In the latter part it says, "but officers released from arrest under the provisions of this article may, etc.," not officers whose arrest terminates; the article should be construed in conjunction with Article 65, which prescribes the gravest punishment for terminating an arrest until released by the commanding officer.

If not released from arrest, or restored to duty at the time designated by law, an officer should apply for the

1 Opinions J. A. G., p. 57.

appropriate relief to the officer who ordered his arrest or his successor. If his application is not granted, it is open for him to apply for redress to the officer superior to the latter, in the manner set forth in the 29th Article of War.1

When all other means of justice fail, which must be an extremely rare case, an appeal should be made to the Secretary of War.2

Unlawful Arrests. Is there no protection to an officer against illegal arrests by his commanding officer, or being held in arrest contrary to law? In addition to the mode just pointed out, two legal remedies are open to any one placed under military arrest which he deems to be unlawful:

First. An application for a writ of habeas corpus to one of the United States courts or judges.

While no case is known where this has been resorted to in this country, several cases have come before the Court of Queen's Bench in England, in some of which the applicant has been remanded to the military authorities; in others discharged." The United States courts have ever exercised the right of determining, on a writ of habeas corpus, whether the custody of a person held by the military authorities is lawful or not. The English courts have refused to interfere by ordering the prisoner's release under habeas corpus because his confinement exceeded eight days.*

Second. A civil suit against the party illegally arresting.

In the case of an English officer (Captain Wall), where he was kept in prison for nine months before a courtmartial was summoned, he recovered £1000 damages This article in its spirit if not in its language applies to all cases of this character. p. 98.

* Opinions J. A. G., p. 58. Ibid, p. 102.

Clode's Military and Martial Law,

Lord Mansfield stigma

against the committing officer. tized the conduct of the latter as "malignant." He said: "The principal inquiry to be made by a court of justice in such cases is how the heart stood. If there be nothing wrong there, great latitude will be allowed for misapprehension or mistake."

" 1

A similar doctrine has been laid down by the Supreme Court in this country :-In the case of Wilkes vs. Dins man, an action of trespass was brought by the defendant, a marine, against his commanding officer for holding him after his term of service, as claimed by him, had expired. The court held, that a public officer, invested with certain discretionary powers, never has been, and never should be, made answerable for any injury, when acting within the scope of his authority, and not influenced by malice, corruption, or cruelty. Hence, while an officer acts within the limits of that discretion, the same law which gives it to him will protect him in the exercise of it. But for acts beyond his jurisdiction, or attended by circumstances of excessive severity, arising from ill will, a depraved disposition, or vindictive feeling, he can claim no exemption, and should be allowed none under color of his office, however elevated or however humble the victim."

Who may place an Officer in Arrest. None but commanding officers have power to place officers under arrest, except for offenses expressly designated in the 24th Article of War. This article ordains that, All officers of what condition soever, have power to part and quell all quarrels, frays, and disorders, whether among persons belonging to his own or to another corps, regiment, troop, battery, or company, and to order officers into arrest and non-commissioned officers and soldiers into confinement, who take part in the same, 1 Clode's Military and Martial Law, p. 101.

27 Howard, 89.

until their proper superior officer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or non-commissioned officer, or draws a weapon upon him, shall be punished as a court-martial may direct.

This is the only article where the word "officer " includes non-commissioned officer. In the first part of the articles of war it is expressly stated to designate commissioned officers when used therein.

Benét says, "The authority of this article can and should be extended to any glaring impropriety, such as drunkenness on parade, that properly comes under the head of disorders. It was decided by high authority in the British service, that circumstances may occur even upon parade, to justify a junior officer to take 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.".

When a non-commissioned or junior officer orders a superior in arrest, under the provisions of this article, the fact should be immediately reported to the commanding officer.

A court-martial, under the authority of Article 86, has the power of ordering military persons in arrest, who use any menacing words, signs, or gestures, in its presence, or who disturb the proceedings by any riot or disorder.

'A court-martial could not arrest an officer for disobedience of its lawful commands, or contempts committed, when absent from its sessions. It should in such cases apply for redress to the convening officer, or to the Secretary of War.2

1

Military Law and Courts-Martial, p. 58.

2 Opinions J. A. G., p. 34.

Courts martial have no power to order one of its members or the judge-advocate in arrest; the same course must be pursued as just indicated. In 1849 a court-martial ordered its president in arrest, but its action was disapproved by the President of the United States, on the ground that the 86th Article did not authorize a courtmartial to punish its own members.1

Courts-martial may order in arrest, for the contempts spoken of in the 86th Article, officers superior in rank to every member of the court."

Manner of Arrest. When above the rank of a captain, sealed instructions, in case of arrest, should be sent to the officer in ordinary cases. Under the rank of major it is ordinarily done by one of the commanding officer's staff, who formally reads to the accused the order. It may likewise be done by the mere verbal order of competent authority.

Release from Arrest. The officer who orders the arrest, or his superior, is alone competent to release from arrest. When a junior or non-commissioned officer exercises the authority conferred in Article 24, they could not exercise the power of release. Article 65 requires that the release be by the commanding officer.

General Observations. Regulations direct that officers are not to be put in arrest for light offenses. For these the censure of the commanding officer will, in most cases, answer the purposes of discipline.3

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.

It is not necessary that any officer should be placed

IG. O. 14, A. G. O., April 12, 1850.

Case of Major John Browne, Samuel's Military Law, p. 635. De Hart, p. 104.

Regulations, par. 222. 4 Ibid., par. 224.