HC Deb 19 April 1877 vol 233 cc1450-64

Order for Consideration, as amended, read.

Bill, as amended, considered.

Clause 13 (As to swearing and summoning of witnesses. Oath to be administered to shorthand writer).

Amendment proposed, in page 3, line 31, to leave out from the word "forces," to the word "exercise," in line 35.—(Mr. Parnell.)

Question proposed, "That the words proposed to be left out stand part of the Bill."

Amendment, by leave, withdrawn.

Amendment proposed, In page 7, line 42, after the word "court," to insert the words "It shall be lawful for any person who may be tried before a general or other court martial to employ and have the assistance of counsel on such trial, in as full a manner as such person might if he was being tried for an offence before any civil tribunal."—(Mr. Parnell.) Question proposed, "That those words be there inserted."


said, that there was no provision in the Mutiny Act or in the Articles of War against the employment of counsel by prisoners tried by court martial. The matter was provided for by the regulations of the Service. The whole question of courts martial and the employment of counsel both in the Army and Navy was under consideration, and he therefore hoped the hon. Member would not press his Amendment.


said, that the answer of the Judge Advocate General was highly unsatisfactory. This was a case which the House could well understand for itself, and it did not want to be referred to any Army Regulations. Members were there to tell the country at large whether in their judgment a man on his trial by court martial was in such a position as to require the assistance of some one learned in the law to defend him. Many years ago the question was discussed whether a prisoner on his trial for high treason should have the assist- ance of counsel, and a noble Lord who argued in the affirmative, but who could not collect his thoughts, turned the circumstance to account very happily by saying that if he felt this embarrassment, how much greater must be the difficulty of a man on his trial for his life. In the same way, how great must be the difficulty of an ignorant and unlearned man who was not allowed to claim the assistance of a legal adviser. He would be much more likely to have justice done him if the Amendment were agreed to.


said, he thought the hon. and learned Member for Sheffield was under some little misapprehension on this subject. Inquiries by courts martial were conducted very differently from trials in the civil Courts. The question was not one as to the granting of assistance to a prisoner; for the assistance of a friend, who might be a legal friend, was allowed in all cases in which it was required and applied for. The mode of procedure differed from that which prevailed in civil Courts, and in this respect, among others—that the questions were committed to writing and were invariably put through the President. There was, as he said, nothing in the Mutiny Act to prevent a military prisoner obtaining assistance. He hoped the House would not now lay down any stringent rule on the subject of courts martial, more especially as the whole question was now under consideration.


observed that the House had heard for so long a time that the question of simplifying the Mutiny Act and Articles of War was under consideration, that he hoped the House would no longer permit this dilatory plea to be continued, but themselves take up the matter with a view to making the law and regulations as to courts martial so clear that it would be intelligible to soldiers. He thought that a great slur was placed upon the military system of the country, and an injustice done to the officers and soldiers of the Army by permitting the continuance of a confused and unintelligible Mutiny Act. That Act and the Articles of War ought to be made so plain that there could be no possibility of mistaking their meaning. If the hon. Member went to a division he should support him, not because he thought it was necessary to embody the Amendment in the Mutiny Act, but to show how much he felt that the present very defective system of military law should be altered.


thought the reply of the right hon. Gentleman the Secretary of State for War was very unsatisfactory. No doubt some assistance was now given a soldier on trial before a court martial; but it was of so inefficient a character as to be useless. He hoped his hon. Friend would press his Amendment to a division.


said, the Amendment was a plausible one, but its adoption would, in his opinion, prove a questionable advantage to a military prisoner. In an ordinary criminal prosecution counsel was allowed for the Crown, but in a court martial no counsel could plead on either side. [An hon. MEMBER: The Judge Advocate General.] It did not follow that the Judge Advocate was a lawyer. What, he asked, would be the position of a poor soldier if he had trained counsel conducting the case against him, while he himself could not obtain such assistance? It would really only make his position worse instead of better. The House should remember, too, that the Judges in courts martial were experts on all matters connected with the profession to which the prisoner belonged, and there was therefore less necessity for the proposed change. He sympathized with the principle and sentiment of the Amendment, but thought there were many reasons for maintaining the present system.


said, he was in favour of waiting till next year, with a view to see what amendment of the law the Government would propose. At inquiries before courts martial the questions were all put down in writing, and thus a great deal of time was consumed. If counsel were employed and that system kept up, he did not think it would be attended with advantage to the soldier. While he thought the system of courts martial should be revised, he feared the Amendment would confer a doubtful boon on those on whose behalf it was proposed.


said, there appeared to be an extraordinary misunderstanding on this question. The assistance of counsel was not for one moment refused in any case to anyone—private, sergeant, or officer. He could not, however, plead or verbally put questions; but he could advise as to any question, and could write the defence, although he could not speak it. If they allowed a barrister to attend and plead they would entirely alter the character of courts martial. If any hon. Gentleman meant to say that the present system I was unjust, he could assure him that his opinion was totally opposed to the fact.


said, that some years ago he had a good deal of personal experience as counsel for a prisoner on a court martial, and certainly, as far as facilities for counsel were concerned, he was bound to say they were complete and ample. It was impossible to conduct such an inquiry in exactly the same manner as a trial before the ordinary tribunals. If they were to have trained lawyers pleading, they should have trained lawyers presiding; otherwise the Court would be very much at the mercy of the lawyers at either side. His opinion was that courts martial, as at present conducted, were entirely unsatisfactory. He admitted it would not be convenient to convert courts martial into Courts of Law or Courts of Quarter Sessions; but, at the same time, it was unfair that the Judge Advocate should occupy the dual position of prosecutor of the prisoner and assessor or adviser of the Court. What was wanted was an impartial assessor. In the year 1869 a Select Committee sat upstairs to consider the subject, and he was one of the witnesses examined. He did not know how far the Regulations of which they had heard proposed to carry out the recommendations of the Committee; but he thought they ought to have from the Government an assurance that before the end of the Session the Regulations would be laid on the Table, in order that the House might have an opportunity of expressing their opinion upon them.


said, that when he held the office of Judge Advocate he recommended that every prisoner should have the advantage of the assistance of counsel where there was — as there might be — a fixed President. He felt it was a great grievance that soldiers should not be defended by counsel or solicitors. The scheme he suggested was not carried out owing to the press of other business. It was his intention to move for a Select Committee to inquire into the whole subject, and he hoped the result would be a re-modelling of the Mutiny Bill and an alteration of the law relating to courts martial. He should vote for the Amendment if it was pressed; but he hoped it would not be carried to a division.


said, from his experience as Judge Advocate General, he had long felt the necessity of some amendment in the Mutiny Act and Articles of War. In 1868, at his instance, a Royal Commission had been appointed to inquire into the system of courts martial. It was presided over by Lord Winmarleigh. The noble Marquess (the Marquess of Hartington), the Recorder (Mr. Russell Gurney), Mr. Head-lam, and others had served with him (Mr. Mowbray) on that Commission. The Commission reported in 1869. But those were the days of "blazing questions," and the recommendations of the Commission remained unheeded to this day. He expressed his surprise that the imperative amendments in the Mutiny Act and in the Articles of War should have been so long neglected by successive Governments. He hoped they would receive an assurance from the Secretary of State for War or the Judge Advocate General that the subject would be dealt with as soon as possible.


said, his hon. Friend the Member for Meath (Mr. Parnell) did not desire to put the House to the trouble of a division if he could I get the assurance asked for by the right hon. Gentleman the Member for Oxford University (Mr. Mowbray.)


said, he had already stated that the matter was under active consideration at present. He could not undertake absolutely that it should be dealt with this Session; but if he were in a position to do so he should move for a Committee on the general question; and, if not able to bring forward a measure on the subject this Session, he should do so in the next.


said, he would withdraw his Amendment on the undertaking that had been given by the Secretary of State for War.

Amendment, by leave, withdrawn.

Clause 16 (Judgment of death may be commuted for penal servitude or other punishments).


moved, in page 9, line 14, after "aforesaid," add— Provided that the imprisonment shall not exceed two years, and that the solitary confinement shall not exceed seven days at a time, with intervals of not less than seven days between the periods of solitary confinement; and that if the imprisonment exceeds eighty-four days, the solitary confinement shall not exceed seven days in any twenty-eight days of the imprisonment.


was glad the right hon. Gentleman had brought forward this Amendment, as it rendered unnecessary the one of which he had given Notice.

Amendment agreed to.

Clause 22 (Courts-martial may not sentence to corporal punishment in time of peace).


moved to amend the clause by substituting 25 for 50 lashes as the punishment which might be inflicted upon offending soldiers.

Amendment proposed, in page 13, line 22, to leave out the word "fifty," and insert the words "twenty-five,"—(Mr. O' Connor Power,)—instead thereof.


refused on the part of the Government to adopt the Amendment, as an innovation upon all Mutiny Bills.

Question put, "That the word 'fifty' stand part of the Bill."

The House divided:—Ayes 254; Noes 150: Majority 104.—(Div. List, No. 80.)

Clause 26 (Power of imprisonment by general, garrison, or districts courts-martial).


moved, in page 14, line 9, to leave out from "the" to war," inclusive, and insert— Seven days at a time, with intervals of not less than fourteen days between each period of such confinement. Ho moved this to make the Act uniform with regard to the sentences of solitary confinement in cases where the punishment of death was commuted to imprisonment. On Clause 16 the Judge Advocate General moved a similar Amendment, and it was carried; but it did not appear to be the intention of the Government to apply the same principle to the subsequent clauses.

Amendment proposed, In page 14, line 9, to leave out from the word "exceed," to the end of Clause 26, in order to add the words "seven days at a time, with intervals of not less than fourteen days between each period of such confinement."—(Mr Parnell.)


remarked that his Amendment to Clause 16 referred to commuted sentences, and not to original sentences, which were dealt with in Clause 26. If the Amendment were accepted a prisoner would be subjected to a longer period of solitary confinement than was now laid down.


trusted the hon. Member for Meath would test the opinion of the House on this question. The effect of the Amendments which had been placed on the Paper by the hon. Member and other hon. Members had been to awaken the attention of the House in an extraordinary degree. It had been stated that the Bill was always passed as a matter of course; if so, that was the very thing which gave real effect to this opposition. It was a pity that measures affecting those upon whom the stability of the Empire depended should be run through Parliament in the way this one seemed to have been on previous occasions. The hon. Member for Meath was really pursuing a patriotic course—a course in which the patriotism of England and Scotland was as much concerned as that of Ireland.


said, the time had arrived for the re-consideration and rearrangement of the punishment to be inflicted under the Mutiny Act.


ventured to ask the Secretary of State for War, whether this Amendment was or was not necessary, having regard to the Amendment which was carried on Clause 16?


hoped the Secretary at War would throw some light on the subject, as the explanation of the Judge Advocate General was unintelligible. He did not understand the resistance of the Government to this Amendment after the Amendment of the Judge Advocate General himself on the 16th clause. In that clause it was declared that where under a court martial sentence of death had been pronounced it should be lawful to reduce the punishment in a certain I way, and the Judge Advocate's Amendment added that where solitary confinement was a part of the reduced sentence that confinement should not exceed seven days at a time, with intervals of seven days between each period of solitary confinement. In this clause they were dealing with less offences, and if in commuting sentence on a person convicted of a crime which deserved the sentence of death, they said that a criminal should not be exposed to more than seven days' solitary confinement, how could they, in a crime of less degree, declare that he should be confined for a longer period than seven days?


said, that the change made by the Government had reference solely to commuted sentences as laid down by the late Government. This clause had reference to the direct sentences of courts martial, to whom was left the discretion of the amount of solitary confinement they would impose so far as it was charged by the Articles of War. With regard to this Amendment it was not in accordance with the Amendment moved by the Government on Clause 16. It was in a different form.


Well, I am willing to adopt the Amendment as moved by the Government.


said, they were dealing with an Amendment before them; and looking at the way in which the thing had worked in connection with the Articles of War, and that the sentence was a direct sentence passed by a court martial, he did not think any alteration was required.


said, if seven days' solitary confinement was sufficient in a commuted sentence, it ought to be sufficient in an original sentence. He would suggest that the proposer of the Amendment should allow it to be negatived, and then move it again in accordance with the Amendment which had been accepted on Clause 16.


said, the Amendment of the Judge Advocate limited solitary confinement where the sentence had been commuted, and the object of the Amendment of the hon. Member for Meath was to limit it in the case of the original sentence. He did not see why that should not be done, and lie would rather that the House should determine the matter than the Secretary of State for War.


pointed out that what would be an excessively severe punishment if continued for a long period, such as two years, would not be considered by medical authorities as injurious to health if inflicted under a short sentence for a short period.


pointed out that the Amendment on Clause 16 would apply to a sentence which when commuted was two years; but under the clause in ques- tion in a sentence of two years the solitary confinement would be 14 days.


said, the effect of the Articles of War governing this clause would be that, in sentences of mere than 84 days, solitary confinement could not exceed seven days in any 28 days, so that the interval would be 21 days; while the effect of the proposed Amendment would be to reduce that interval to 14 days.


submitted that the matter ought to be decided by statute, and not left to the discretion of courts martial.

Question put, "That the words proposed to be left out stand part of the Question."

The House divided:—Ayes 278; Noes 142: Majority 136.—(Div. List, No. 81.)


moved, in page 14, at end, to add— and may sentence any non-commissioned officer to reduction to the ranks, or to be placed at the bottom or in any other place on the list of his rank, or to be reduced to an inferior rank of non-commissioned officer, and, in case of reduction to the ranks, may further sentence him to any punishment to which a private soldier is liable, with the exception of corporal punishment. He complained that if a non-commissioned officer were convicted by a court martial of an offence, however trifling, the Court had no option but to reduce that man to the ranks. To a great many sergeants such a sentence meant positive ruin. He did not propose to take away from courts martial any power which they at present possessed. All he proposed was to give them the power to reduce a sergeant to an inferior rank if they did not think that the merits of the case warranted reduction to the ranks. The only other effect of his Amendment would be to prevent a non-commissioned officer under any circumstances from being flogged.

Amendment proposed, In page 14, line 9, at end of Clause 26, to add the words "and may sentence any non-commissioned officer to reduction to the ranks, or to be placed at the bottom or in any other place of the list of his rank, or to be reduced to an inferior rank of non-commissioned officer, and, in case of reduction to the ranks, may further sentence him to any punishment to which a private soldier is liable, with the exception of corporal punishment."—(Captain Nolan.)

Question proposed, "That those words be there inserted."


said, that he could not accept the Amendment. There was no one in that House more anxious than he to encourage good noncommissioned officers, and the want of them was the great difficulty in a system of short service. Everything, therefore, they could do to encourage good noncommissioned officers to keep their places ought to be sanctioned by the House. The matter, however, being one affecting the discipline of the Army, it had been his duty to refer it to those who were responsible for maintaining that discipline. He had promised last year to give his attention to this subject; and the first thing he did after the discussion in Committee was to obtain the opinion of the military authorities. He had obtained that opinion, and had, inconformity with it, made no change. The rule at present was, that if a sergeant were tried and convicted by court martial, he would not be immediately put into a position of command. The House, however, could hardly be aware, after what had been said, how easy it was for a man to be reinstated in a position of command if he showed himself deserving. He might, indeed, soon be in the same place again if the military authorities approved. He believed that within particular grades non-commissioned officers were chosen by selection and not placed by seniority. [Captain NOLAN: No.] From one grade to another, promotion in the case of good conduct might usually be made by seniority; but, as a rule, the placing and replacing men in particular grades, he was told, went by selection and not by seniority. So that if a sergeant having been tried by court martial were reduced to the ranks he might soon be a corporal again, and afterwards sergeant, and even sergeant-major if his conduct deserved it. It was better, as far as the discipline of the Army was concerned, that a non-commissioned officer should be reduced to the ranks than to leave it to a court martial to reduce a sergeant to the rank of corporal.


said, officers were punished by reductions of rank, putting back the date of their commissions, and in other ways, and the same principle ought to be applied to sergeants. Why could they not let courts martial do as they pleased? So long as punishments awarded by courts martial were consistent with military usages, there could be no objection to sentences of such courts being as free from objection as were the punishments awarded without trial. At present courts martial being restricted to the one punishment of reduction to the ranks, thereby entailed the further very severe punishment of deprivation of pensions, good conduct medals, and other benefits, until the soldier had served a long series of years free from trial. It was therefore desirable to allow more freedom to courts martial in awarding punishments.


expressed a hope that the right hon. Gentleman would accept, if he could not take it all, that part of the Amendment which relieved non-commissioned officers from the liability to be flogged.


said, it rarely happened that a non-commissioned officer who had been reduced to the ranks was ever re-instated in his former position. He would support the Amendment.


said, that all his sympathies were in favour of the abolition of corporal punishment. In the Crimea he saw a man receive 50 lashes for throwing down his arms and running away in the face of the enemy. There would have been some sense in shooting the man; but there was no sense in flogging him. It was possible to flog a brave man into a coward; but they could never flog a coward into a brave man. He (Mr. Bromley-Davenport) never remembered an occasion on which a Mutiny Bill had been discussed as the present Bill had been. There were, he thought, other than humanitarian reasons for the obstruction which the measure had had to encounter.


rose to order. He wished to know whether any hon. Member was entitled to impute other than humanitarian reasons for what was being done; and, further, whether it was right to term the course they were taking as a policy of obstruction?


said, that the imputation of wilful obstruction, not dependent on the merits of the question, would, no doubt, be out of order; but he did not understand that such an imputation had been made by the hon. Member.


said, that if he used the word in the sense attributed to him it had slipped from him inadvertently. He would say, how- ever, that there were other than humanitarian reasons for the obstruction which had been given to the Bill. It was a wholly unprecedented obstruction. In the whole course of his Parliamentary life he had never seen such obstruction to the Mutiny Bill before, and hoped he should never see it again.


observed that whether there had been obstruction or not, it was clear that what had occurred would lead to the abolition of flogging. The question was one which could be better discussed in Committee. As it was, nobody could speak more than once, and explanations, therefore, were precluded from being given. He recommended that the Amendment should be withdrawn, and brought forward again at a later stage.


agreed with his right hon. Friend the Secretary of State for War that sergeants reduced to the ranks were very frequently re-promoted. For his part, he had more than once himself on the day a sergeant was reduced to the ranks promoted him to the rank of corporal. A great deal more had been said about corporal punishment in this debate than was necessary, as practically since 1868 it had been abolished in the Army. Hon. Members who were so anxious to reduce these punishments should remember that discipline must be kept up. It was just now at rather a low ebb, and the cases of petty insuberdination were more numerous than ever they had been. Even in the Navy discipline was not what it was. In fact, want of discipline was the failing of the age. The discipline of the Army and Navy was not what it was. There was want of discipline in the Church and at the Bar; and, mere than that, he was sorry to say, there was want of discipline in that House.


said, the debate would, he hoped, compel the Government to bring forward a Bill next year in compliance with the recommendations of the Commission which sat in 1869, and which made in its Report a suggestion on this very subject. That Report did not go quite so far as the Amendment now proposed; but it expressly stated that some alteration in the case of non-commissioned officers was necessary. He pointed out that in all foreign Armies a scale of punish- ments prevailed in respect of non-commissioned officers.


in reply to the charge of obstruction, observed that this was not the first, but the third time the hon. and gallant Member for Galway (Captain Nolan) had brought the subject before the House, and he hoped he would persist in doing so until the law was altered. He was glad to see the House coming to its proper senses and discussing everything.

Amendment proposed to the said proposed Amendment, To leave out the words "or to be placed at the bottom or in any other place in the list of his rank."—(Mr. H. B. Samuelson.)


opposed the Amendment. It appeared to him we were terrible slaves to human respect. The result of the Amendment would be that they would be continually "winding up the clock" with broken-down sergeants and corporals. There was as good fish in the sea as was ever got out of it; and when a young fellow joined the Army it was not desirable that his prospects of promotion should be retarded while the process of reducing sergeants to the rank of corporals and then re-converting then into sergeants was going on. He knew a case of a young man who was made a lance-corporal before he left the drill squad, and who died a captain. If the system advocated by this Amendment were in vogue, ho would have died probably a private soldier. As to corporal punishment, he saw no reason why it should not be inflicted upon a reduced sergeant if it was to be retained in the case of other private soldiers. He was surprised at the Amendment being brought forward by a Gentleman of experience.


desired to maintain the high position of the sergeant, and he should like to see no alteration in the present rule.


said, he would accept the proposal of the hon. Member for Frome (Mr. H. Samuelson) to amend the Amendment which he had moved.

Question, "That the words proposed to be left out stand part of the proposed Amendment," put, and negatived.

Question put, That the words 'and may sentence any noncommissioned officer to reduction to the ranks, or to be reduced to an inferior rank of non-commissioned officer, and, in case of reduction to the ranks, may further sentence him to any punishment to which a private soldier is liable, with the exception of corporal punishment,' be there inserted.

The House divided:—Ayes 75; Noes 209: Majority 134. — (Division List, No. 82.)

Clause 27 (Power of imprisonment by regimental or detachment courts-martial).


who had an Amendment that the solitary confinement inflicted should be only for seven days at a time, with intervals of not less than 14 days between each period of such confinement, said, he did not propose to move it, and hoped the Government would give him credit for his forbearance. Indeed, he had not brought forward one half of the Amendments of which he had given Notice. The hon. Member then moved an Amendment in relation to the billeting of officers without payment of their lodgings in country towns. This was not much felt in English towns, where there was a superfluity of hotel accommodation; but in Irish towns the billeting was a loss to the hotel-keepers, unless the officers were fast and not given to sober habits.

Amendment proposed, in page 37, line 41, to leave out from the words

Provided always," to the end of Clause 63.—(Mr. Parnell.)


opposed the Amendment.


said, that if there was any grievance at all it was an hotel-keepers' grievance, and as they had not objected to the present system he saw no reason for interfering. He believed that innkeepers regarded the coming of troops into a town as an advantage. He hoped the Amendment would be withdrawn.


said, he had had the honour of speaking to an hotel-keeper on this subject, and there was no doubt that a grievance did exist which ought to be remedied.


supported the Amendment.

Question put, "That the words proposed to be left out stand part of the Bill."

The House divided:—Ayes 168; Noes 28: Majority 140.—(Div. List, No. 83.)

Clause 104 (Militia may be attached to regular forces).

Amendment proposed,

In page 62, line 14, at the end of Clause 104, to add the words "Provided, That no militia officer shall be eligible to command any portion of the regular forces unless such officer belongs to a regiment or corps which is at the time embodied for service or assembled for training."—(Mr. Biggar.)


reminded the House that a similar proposal to that now brought forward had been made by the hon. and gallant Member for Aberdeenshire (Sir Alexander Gordon) when the Bill was being considered in Committee; but that, after full discussion, that hon. and gallant Gentleman did not press his Motion to a division. On the occasion to which he referred the hon. Member for Cavan (Mr. Biggar) had, however, challenged a Division; but he had not been able to find a Teller to support him. Recollection of these facts might obviate the necessity of discussion on the present occasion.


said, that on that occasion the Committee was taken by surprise when the hon. and gallant Member for Aberdeenshire did not press his Motion to a Division. He thought the Regular Forces of Her Majesty should not at any time be placed under the command of a Militia officer, and he should therefore support the Amendment.

Question put, "That those words be there inserted."

The House divided:—Ayes 31; Noes 161: Majority 130.—(Div. List, No. 84.)


As it is necessary that the Bill should receive the Royal Assent next week, I have, under the peculiar circumstances of the case, to ask the indulgence of the House for a course which I should not have taken under ordinary circumstances, but which is not without precedent—namely, of moving that the Bill be now read a third time.

Motion agreed to.

Bill read the third time, and passed.