in arrest before being brought to trial; nor can an officer demand an arrest, or persist in considering himself in arrest, after he has been properly released. He may be tried without being in arrest. It is not necessary to bring an individual to trial because he has been placed in arrest, nor could he demand a trial. An officer is not prevented from preferring charges while under arrest. An officer is not necessarily privileged from arrest by virtue of being at the time a member of a general courtmartial. But the arrest of an officer while doing courtmartial duty should be avoided in any but extreme cases.1 Non-Commissioned Officers and Soldiers. Noncommissioned officers are not to be sent to the guard room and mixed with privates during confinement, but to be considered as placed in arrest, except in aggravated cases, where escape may be apprehended.2 Any commissioned officer may place a non-commissioned officer in arrest, or a soldier in confinement; but the fact must, as soon as practicable, be notified to his immediate commander. 3 Soldiers charged with crimes should be confined until tried by court-martial, or released by proper authority; and Article 70 provides that no officer or soldier put in arrest shall be continued in confinement more than eight days, or until such time as a court-martial can be assembled. Receiving Prisoners by Officer of the Guard. No provost martial, or officer commanding a guard, shall refuse to receive or keep any prisoner committed to his charge by an officer belonging to the forces of the United 1 Opinions J. A. G., p. 59. 2 Regulations, par. 68. States; provided, the officer committing shall, at the same time, deliver an account in writing, signed by himself, of the crime charged against the prisoner.1 Nothing prevents the receiving of prisoners without such account in writing, but an officer does so at his peril. For the ordinary post offenses, however, it is not customary to furnish a written statement of the crime; and commanding officers of guards frequently receive prisoners brought by non-commissioned officers and soldiers, and confined by order of commissioned officers. Where any doubt exists, in such confinements, the prisoner should be held until the officer by whose order he is confined can be consulted. Where the officer committing is unknown to the commander of the guard; or, where there is any doubt as to the party being amenable to military law; or where the offense charged is one as to which there may be a question of jurisdiction, the commander of the guard should demand, for his own protection, a "written account signed by the officer, of the crime charged." Without such he renders himself liable in damages in an action before the civil courts for false imprisonment. While the 67th Article requires the officer commanding a guard to receive and keep any prisoner committed to his charge, it must be taken with some limitations. Generally speaking, the word "any" applies to persons amenable to military law, and a commanding officer should satisfy himself that the parties committed are so amenable. It is not always possible, though, to determine whether a prisoner presented is amenable. A deserter, for instance, may be presented in citizen's clothes. Is an officer commanding a guard bound to receive such a person, simply on the written statement of the committing 1 Article 67. 66 officer? No case has arisen in our service exactly illustrative of this point, but a decision in the English service in 1850, bears directly upon it. A person who was prima facie a soldier was presented by a uon-commissioned officer to the commanding officer, and the account in writing required by the article furnished at the time. It proved afterwards that the person was not a soldier, and, on release, he brought an action for assault and false imprisonment. One judge (Earle) held that the article applied only to those who are soldiers de facto, and not to those whose qualifications as soldiers are disputed." It was ruled by the remainder of the judges, "that a commanding officer receiving a soldier charged with desertion by a non-commissioned officer, who delivered a written signed charge of the same, is justified under this article in detaining such soldier. He is bound to receive the prisoner under the article of war, and he is not liable to an action for so doing. It makes no difference whether the crime be civil or military. The fact that a man is prima facie a soldier, and enlisted, is sufficient to bring him under the article of war. The duty of receiving arises eo instanti as soon as he is presented." If such imprisonment proves illegal, the committing officer becomes responsible, and this was so decided by the United States Circuit Court in California in the case of McCall vs. McDowell, in 1867.2 Civil Offenders. Commanding officers are sometimes called upon to receive civilians for confinement. Where, for example, a civilian commits a crime upon a military post, the commanding officer would be justified in holding him in confinement until he could be turned over to the authority having jurisdiction of his offense. If a crime is 1 Wolton vs. Gavin, 16 Q. B. Rep., p. 70. Referred to in Clode, p. 100. • 1 Abbott, 212; also cited in Scott's Digest, p. 428. committed away from a post by a civilian, he would not be justified in holding such prisoner. It may be proper to state that, under these latter circumstances, there would be no objection in allowing a marshal, or sheriff, holding a prisoner under proper warrant, to make use of the guard house where no jail is conveniently near, provided he remains to take charge of the prisoner. In this connection it should be borne in mind that in forts, arsenals, etc., which have been acquired by the United States, and over which jurisdiction has been ceded by the State in which it is situated, the United States. courts have exclusive jurisdiction of all offenses committed therein.1 If the jurisdiction has not been ceded by the State, no matter how long the place may have been occupied by the United States, the State courts still retain jurisdiction.2 Release from Confinement. To prevent unjust confinement, Article 68 requires that every officer to whose charge a prisoner is committed, shall, within twenty-four hours after such commitment, or as soon as he is relieved from his guard, report in writing, to the commanding officer, the name of such prisoner, the crime charged against him, and the name of the officer committing him, and if he fails to make such report, he shall be punished as a court-martial may direct: Article 69 further provides that any officer who presumes, without proper authority, to release any prisoner committed to his charge, or suffers any prisoner so committed to escape, shall be punished as a court-martial may direct. The officer of the day is required to release at guard mounting all prisoners under guard, without written charges, 1 Kent's Commentaries, § 430. People vs. Godfrey, 17 Johns (N. Y.), 225; U. S. vs. Ames, 1 Woodbury and Minot (Mass), 76. unless orders to the contrary be given by the commanding officer.1 Control of Courts-Martial over Arrests. A courtmartial has no control over the nature of a prisoner's arrest. If brought before them without having been previously placed in arrest or confinement, it could not order him in confinement. It could not extend the limits of his arrest, even to allow him to better make his defense, as it has no control over him except when in its immediate presence. It might suggest greater liberties to the commanding officer, but he alone is responsible, and Simmons cites a case where a commanding officer was justified by his Majesty, in "refusing to accede to the suggestions of a courtmartial to grant a prisoner such indulgence as might facilitate the examination of witnesses, and thereby enable him to enter earlier on his defense." 2 Regulations, par. 226. P. 121 (21 Eitior), |