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

To prevent unjust con

Release from Confinement. finement, 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.

2

' 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." "

1

1 Regulations, par. 226.

2

* P. 121 (2d Edition).

CHAPTER VI.

CHARGES AND SPECIFICATIONS.

A Military Charge is a clear, concise statement of an offense, with attendant circumstances. In our service it consists of two parts, viz.: the technical Charge, and the Specification. The former designates the offense in general terms; the latter the specific act, with the circumstances, including time and place, which go to make up the offense.

Taken together they correspond to an indictment by a grand jury in criminal prosecutions; the officer who convenes the court and orders the case for trial, finding the true bill of indictment.

1

Form for drawing up Charges. The manner of drawing up military charges has been established by custom, the general form of which will be found in the Appendix. There is, however, in the language of Attorney-General Cushing, "no one form of exclusive rigor and necessity in which to state military accusations." The same care is not needed in drawing up military charges as in civil indictments. According to the same authority "the most. bald statement of the facts alleged as constituting the offense, provided the legal offense itself be distinctly and accurately described in such terms of precision as the rules of military jurisprudence require, will be tenable in

1 VII. Opinions Attorney-General, Dec. 1, 1855. I. Opinions AttorneyGeneral, Aug. 29, 1819.

court-martial proceedings; and will be adequate groundwork of conviction and sentence." The two principal essentials in a charge, including the specifications, are :—

1st. That it be laid under the proper article of war.

2d. That it contain averments sufficient substantially to distinguish and constitute the offense.1 The language of the law should be used when practicable, but the technical expressions used in civil indictments are not necessary.

Charge. Where an offense falls under a specific article it should be so charged, as such was the intent of the framers of the law.

It often happens that an act constitutes an offense against two or more articles. In this event the party preferring the charges must necessarily exercise a discretion; and, as the convening authority generally sees the charges before trial, any error of judgment may be corrected. He may, if he prefer, charge the offense under all the articles. This rule should, however, be borne in mind, that when an offense falls under an article for which a specific punishment is provided, it should be charged under that article. Thus, to charge "Drunkenness on duty" as "Conduct to the prejudice of good order and military discipline," would not be proper. It would give the court a discretion as to punishment where such discretion was not intended by the articles.

The 62d article, known in the English service as the "Devil's article," was added to embrace those crimes not cognizable under the other articles, but which constituted nevertheless offenses to the prejudice of good order and military discipline. It should never be resorted to, therefore, except when an offense is so "prejudicial, etc," and an appropriate article cannot be found under which to 2 Clode's Military and Martial Law,

1 Opinions J. A. G., p. 80.

p. 31.

charge it. Charges are sometimes laid as violation of a specific article; for example, "Violation of the 39th article of war," or the same offense may be more properly charged as "Sleeping on post in violation of the 39th article of war." During the war much fault was found with the former way of laying charges.

In the case of Capt. E- -, U. S. Vols., Gen. McClellan said: "The first charge is 'violation of the 42d' Article of War.' As often happens, when this slovenly and reprehensible style of framing charges is adopted, the reporting officer or the judge-advocate has mistaken the article under which the act mentioned in the specification is punishable. Again, the office of the greater part of the articles of war is to ascertain and denounce the appropriate punishment to an offense. There is also this further objection, viz.: many of the Articles of War speak of several offenses. It is very seldom intended to impute all of these to a prisoner, and the attempt to do this in one charge would be a violation of the rule which requires each charge to be single." "Instead therefore, of charging upon an officer or private, a violation of any Article of War, the reporting officer should name the offense which is punished by the article, and proceed to specify, with the addition of time and place, the circumstances in which the offense consists.""

While in civil cases a person can only be tried for one offense at a time, not so with courts-martial; there may be a number of charges, or a number of specifications, each of which constitutes a distinct offense.

Specification. The specification should be explicit and at the same time concise. It is better to follow the terms used in the articles of war where the design is to

1 Code of 1806.

"G. O. 32, Army of the Potomac, Jan. 28, 1862. G. O. 11,A. G. O., Feb. 5, 1862. G. O. 39, Army of the Potomac, Feb. 4, 1862.