An officer charged with crime or with a serious offense under the Articles of War is placed in arrest by the commanding officer, and in exceptional cases an officer so charged may he placed in confinement by the same authority. A soldier charged with crime or with a serious offense under the Articles of War is placed in confinement, and when charged with a minor offense he may be placed in arrest. Any other person subject to military law charged with crime or with a serious offense under the Arti cles of War is placed in confinement or in ar rest, as circumstances may require; and when charged with a minor offense such person may be placed in arrest. Any person placed in ar rest is restricted to his barracks, quarters or tent, unless such limits are enlarged by proper authority. An officer is placed in arrest by his commanding officer in person or through an other officer, by a verbal or written order or communication, advising him that he is placed in arrest, or will consider himself in arrest, or words to that effect. An officer in arrest can not exercise command of any kind. He cannot wear a sword nor visit officially his command ing or superior officer, unless directed to do so. His applications and requests of every nature are made in writing. Officers are not placed in arrest for light offenses. For these the cen sure of the commanding officer generally an swers the purpose of discipline. In ordinary cases where inconvenience to the service would result from it, a medical officer is not placed in arrest until the court-martial for his trial convenes. Except as provided in the Articles of War, or when restraint is necessary, no sol dier is confined without the order of an officer. who previously inquires into his offense; it is proper, however, for a company commander to delegate to commissioned officers of his com pany the power to place enlisted men in arrest as a means of restraint at the instant when re straint is necessary, but such action must at once be reported to the company commander. Non-commissioned officers are not confined in company with privates if it can be avoided. When placed in arrest, they are not required to perform any duty in which they may be called upon to exercise authority or control over others, and when placed in confinement, they are not sent out to work. When the sen
tence of a general court-martial prescribes dis honorable discharge and confinement, so much of the sentence as relates to confinement is ex pressed in substantially the following form: To be confined at hard labor at such place as the reviewing authority may direct for (leaving to the reviewing authority the desig nation of the place of confinement). A mili tary post, station or camp is designated as the place of confinement of any general prisoner whose confinement is directed to be in a peni tentiary or disciplinary barracks. The arrest of an officer has been compared to an enlarge ment on bail, the security being the officer's commission. It is for this reason that the pun ishment for breach of arrest may include dis missal. The distinction between arrest and confinement lies in the difference between the kind of restraint imposed. In arrest the re straint is moral, imposed by the orders fixing the limit of the arrest, or by the terms of the Article of War. The intention or motive that actuates a breach of arrest is immaterial to the question of guilt, though, of course, proof of inadvertence or bona-fide mistake is admissible in guiding the court in fixing punishment.
The present system of courts-martial leads to injustice logically, naturally and inevitably, and needs corrective modification. It is an in heritance from the old British code, which was adopted in 1774 and never changed. Instead of being a court in the proper sense, it is simply the executive arm of a commanding officer. When the accused is arrested and brought be fore this tribunal he generally has no counsel skilled in the law and (when convicted) is con victed by a court which has no knowledge of law. The sentence is reviewed by an authority sometimes equally ignorant of law and the man is forced to undergo the sentence imposed. An illustrative case, from the records of trials by courts-martial, is that of a man who was ar rested and charged with desertion. He was sentenced to forfeit all pay, be dishonorably dis charged and serve ninety-nine (99) years at hard labor. The reviewing authority in sus taining the court naively remarked that it would not enforce the part of the judgment providing for the man's dishonorable discharge until he had served his prison sentence.