Clause 147 (Apprehension of deserters or absentees without leave). (Hansard, 8 July 1879)

§ MR. PARNELL
said, that the last time the Committee met they were discussing a question involved in the Amendment; he would not discuss it now at any length; but he would ask the right hon. and gallant Gentleman the Secretary of State for War whether he would not agree to put words in the clause to the effect that no officer or soldier could apprehend a suspected deserter unless he could identify such person as a deserter? He quite recognized the force of what the right hon. and gallant Gentleman said yesterday, that an officer or soldier ought to be empowered to arrest a deserter if he met him in the street. But the clause in question seemed to him to give a great deal more power to the officer, or soldier, or other person, to arrest on mere suspicion than ought to be given. He trusted the right hon. and gallant Gentleman would see his way to meet the objection to the clause. He begged to move, in page 79, line 22, after the word "person," to insert "provided he can identify such person as a deserter."

§ COLONEL STANLEY
had no objection to the principle of the Amendment; but he could not accept the words proposed, for it appeared to him that it would lead to great inconvenience to prevent an arrest by any person except he could actually identify a deserter. Anyone who arrested a deserter, and took him before a Court, was, of course, subject to the consequences if ho had not acted upon good grounds. If the alleged deserter were detained, he had an action against the person detaining him. He had no objection to insert any words which would prevent improper arrests; but he could not agree to the insertion of the words proposed.

§ MR. HERSCHELL
thought that the difficulty might be met by inserting words to this effect—" provided that he is personally known to him."

§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
said, that if a constable suspected a man to be a deserter, then he was entitled to apprehend him and take him to prison. He might recognize the soldier he apprehended by the description, but could not positively identify him from personal knowledge.

§ MR. O'SULLIVAN
thought that his hon. Friend the Member for Meath (Mr. Parnell) was mistaken in his Amendment. It might cause very great annoyance, if a man were brought before a magistrate without any evidence offered against him. It would be too much power to leave in the hands of a private soldier if the Amendment were adopted. He thought it better to leave the clause as it stood.

§ MR. PARNELL
said, that they could not adopt the suggestion of the bon. Member for County Limerick (Mr. O'Sullivan), because the Committee had already divided on the question. Ho was willing to agree to the suggestion of the hon. and learned Member for Durham (Mr. Herschell), to withdraw his Amendment, in order to enable his to be proposed.

HERSCHELL
moved the insertion of the words, "provided lie is personally known to him as a deserter."

§ COLONEL STANLEY
did not think that the Amendment should be adopted. A man might not be personally known, but might he known by being marked in a particular way. The real point was as to the identification, and if hon. Gentlemen would allow hint, he would consider the matter in conjunction with those who advised him. De could not agree to the insertion of this Amendment; he did not see how the process of identification of the deserter could be completed before he was brought into court.

§ MR. PARNELL
moved, in line 33, page 80, to leave out from the word and," to the end of the clause. This sub-section provided as follows:— A Secretary of State shall direct payment of the said fee, and may also cause to be paid to the person by or through whose means it appears to his satisfaction that any such deserter or absentee without leave was apprehended a sum not exceeding forty shillings." 1889 There was a great deal of objection to the system of these rewards; he was afraid that, in many cases, there was a great deal of fraud connected with the matter. The effect of the system of rewards was shown by the great increase in the amount paid in respect of them.

§ COLONEL STANLEY
said, he had no objection to the Amendment.

§ COLONEL ALEXANDER
inquired if the reward to the constable was included in the Proviso which had been struck out?

§ COLONEL STANLEY
said, that it was not.

An hon. MEMBER
thought the constable should be included, for he ought not to be paid extra for doing his duty.

§ COLONEL STANLEY
said, it would not be necessary to pay the constable for making arrests.

§ MR. PARNELL
asked the right hon. and gallant Gentleman from what Statute he had taken the words? He was not sure whether, in order to abolish the power, they would not have to move a Proviso at the end of the clause.

§ COLONEL STANLEY
said, he had taken the words from the Mutiny Act.

§ MR. PARNELL
said, it would not then be necessary to move a Proviso.

§ MR. E. JENKINS
moved, in page 81, line 8, after the word "shall," to insert " if an officer, shall on conviction by court martial, be dismissed the service." The effect of the Amendment was to make officers committing the offences liable to be dismissed the Service, as well as pay a fine of £100, on conviction or indictment on information.

§ MAJOR NOLAN
said, this clause was rather hard upon officers. If they took the case of a medical man, it seemed to him rather hard to punish him by this line for receiving or passing anything in respect of an exchange or promotion or retirement. But a medical man was to be dismissed the Service in such a case. There was another difficulty by providing such heavy punishments. In the old state of the law, officers were allowed to pay money for exchanges. About 1870, they were ordered to pay no money for exchange except the cost of passage; 1890 and in 1875 the Government brought in a Bill allowing officers to pay money for exchanges. He thought that if this Amendment were adopted, the word "knowingly" ought to be put in. If an officer knowingly offended against the law, then nothing could be said for him. De thought, also, that the word "shall," in the latter part of the clause, should be struck out, and " may" substituted, in order that it might not be imperative that an officer should be dismissed the Service for this offence. The punishment provided was very heavy, and the matter ought to be surrounded with some safeguards.

THE CHAIRMAN
said, that the hon. and gallant Member could not move to insert the word " may," instead of " shall," unless the Amendment before the Committee was withdrawn.

§ COLONEL STANLEY
did not know whether his hon. and gallant Friend would think it necessary to insert this Amendment. De would observe that this punishment only followed conviction by a court martial; and he might be sure that unless the offence had been fraudulently and knowingly committed no court martial would convict.

§ MR. CAMPBELL - BANNERMAN
would like to know how far this clause was in accordance with the existing law? He was under the impression that under the Brokerage Act of 1809 anyone not an officer who committed these offences was guilty of a misdemeanour, and this would involve a much heavier punishment than was now provided. The offender was now made liable to be fined, whereas, formerly, he could have been imprisoned. If they were to keep in cheek the transactions which they did not desire to encourage, they should not let off the persons who ought to be punished with a mere fine of £100—a mere nothing for men who set up a regular machinery for carrying on practices which were against the law. He was certainly under the impression that under the Brokerage Act of 1809 the penalty for this offence was imprisonment.

§ COLONEL ARBUTHNOT
wished to point out that the word " liable" in the clause gave a discretionary power, and there was no necessity to change the word "shall" to "may."

§ COLONEL STANLEY
said, that it would be found that in the previous Acts 1891 the persons negotiating these transactions had been made to forfeit £100. He had no objection to make the penalty more severe if the Committee thought it right.

§ MAJOR NOLAN
said, that the words of the Amendment of the hon. Member for Dundee (Mr. E. Jenkins) made it imperative that an officer should be dismissed for these transactions. He thought there might be a fair way out of the difficulty. Three different offences were defined in this clause. The first and second of these related to the purchase and sale of commissions, and the giving or receiving of valuable consideration in respect of promotion or retirement. They were very serious offences; but the 3rd sub-section related to exchanges which at the present moment took place in numerous ways, and people might very easily, unknowingly, transgress the law. He thought that if the 3rd sub-section of the clause were left out, then it might be left as it stood. It was right that for the first two offences a very much heavier punishment should be provided; but in respect of exchanges, he did not think so severe a penalty should be given.

§ MR. E. JENKINS
thought that the right hon. and gallant Gentleman the Secretary of State for War might accept the offer of his hon. and gallant Friend the Member for. Galway (Major Nolan), which, in fact, was only a recognition of what was done at the present moment. Of course, it might be done by saying, with regard to the two first offences of the Schedule, if an officer, he should be liable, on conviction by court martial, to be cashiered, and then a sentence should be inserted providing whatever penalty they might hereafter decide upon for the person negotiating. The clause might then be amended by inserting words carrying out the views of his hon. and gallant Friend with regard to the third offence, and relating to exchanges. If that Amendment were accepted by his right hon. and gallant Friend, he thought it would be well.

§ SIR GEORGE CAMPBELL
considered that it would be undesirable to do anything in the Bill which might tend to encourage these offences. He understood that officers were compelled to sign a declaration upon their honour not to commit these offences, and it would be a serious thing if this declara 1892 tion were false. On the other hand, if they did not make an officer liable to be dismissed the Service for committing the offence, why was the offence inserted at all in a penal clause? He thought that they would be stultifying themselves by adopting the Amendment proposed.

§ MR. BRISTOWE
said, that the Amendment ran—" Shall be liable, if an officer, on conviction to be dismissed the service; " and after that it was provided that he should be liable on conviction, or indictment, or information, to a fine of £100. That was a very heavy punishment in addition to the dismissal from the Service.

§ COLONEL STANLEY
said, the clause was based upon the assumption that those who acted contrary to its provisions did so with a fraudulent intent, and the best course to pursue was to leave it as it stood for the present. He would then see whether some words could not be introduced on the Report which would make it more acceptable to the Committee.

§ MAJOR NOLAN
said, it was a very difficult matter to decide off-band as to whether there was a fraudulent intention or not. In one case there might be fraud, while in another it might be entirely absent; but he, at the same time, had no objection that an offender under the clause should be made liable on conviction to a severe penalty. The Amendment proposed by the hon. Member for Dundee (Mr. E. Jenkins) was, he might add, in his opinion, preferable to that of the hon. Member for Kirkcaldy (Sir George Campbell). It was desirable, he thought, that too heavy a penalty should not be inflicted, because that would have the effect of defeating the object for which it was proposed that a penalty should be imposed. There were, he believed, some cases, such as those with which the clause dealt, in the Duke of York's time; but, if he was not mistaken, there had been no case of the kind for the last 50 years.

§ MR. MUNTZ
said, he quite concurred with the hon. and gallant Member who had just sat down in the opinion that the imposition of too severe a penalty would operate to defeat the object of the clause. The Act of 1809 imposed a penalty of £500 on any person who aided and abetted another in disposing of his commission beyond regulation price. It appeared, however, according 1893 to the Report of the Royal Commission, that not a single person had been convicted under it of the offence; and, therefore, it was not, he thought, expedient that too severe a punishment should be inflicted.

§ MR. HOPWOOD
said, there could be no doubt that the old law on the subject was still in force. There was first the Act of Edward V., and the Act of 1809, which made the former Statute applicable to England, Ireland, and Scotland, and which provided that any person who was convicted of the offence to which it applied should be liable to be judged guilty of a misdemeanour. The present clause, however, imposed a penalty of £100, which should be recoverable on summary conviction. It had been said that no case of the kind had occurred; but he recollected 'a case which occurred a few years ago, in which a tailor engaged to procure a young man in the North of England a commission for a sum of £400. An inquiry was instituted into the matter, which lasted some time, and there was a considerable amount of scandal about it; but it did not, he thought, proceed finally to trial. But the parties were brought before a magistrate, and, if he was not mistaken, charged with a conspiracy to commit a misdemeanour. That being so, it might be well to leave the old law unrepealed, and make the offender under the clause liable to the alternative punishment of having a smaller fine than that named imposed upon him on summary conviction before a magistrate.

§ THE ATTORNEY GENERAL(Sir JOHN HOLKER)
thought it would be better to have a moderate provision, such as that contained in the clause, than that the suggestion of his hon. and learned Friend (Mr. Hopwood) should be adopted.

§ MR. E. JENKINS
would repeat that the object of the Amendment which he had moved was that an officer who was found guilty under the clause should, on conviction by a court martial, be liable to be dismissed from the Service.

§ SIR GEORGE CAMPBELL
objected to the Amendment proposed by the hon. Member for Dundee (Mr. E. Jenkins); because, in his opinion, the punishment of dismissal from the Service would be a comparatively trifling one to inflict for the very serious offence provided against by the 2nd sub-section — namely, the 1894 giving or receiving of any valuable consideration in respect of any promotion in, or retirement from, the Army. A commission, as the Committee was aware, was a very valuable thing; and it might sometimes be worth the while of a rich man to give a considerable sum of money in order to induce an officer to retire from the Service. A very rich man, for instance, who happened to be second in command in a crack Cavalry regiment, might say to the commanding officer that if he chose to retire from it he would give him £4,000 or £5,000. Now, there ought, in his opinion, to be a real penalty imposed in such cases, and the Amendment which he proposed would provide such a penalty.

THE ATTORNEY GENERAL(Sir JOHN HOLDER)
said, that, as he understood the matter, it was now proposed that an officer should be made liable, under the operation of the clause, to be dismissed the Service, in addition to having to pay a fine of £100. The contention of the hon. Member for Kirkcaldy (Sir George Campbell) was that a fine of £100 was not a sufficient penalty; but there would be no objection, he believed, on the part of his right hon. and gallant Friend the Secretary of State for War to increase the amount of the fine, if that course should seem to the Committee to be desirable. Speaking for himself, he thought the penalty proposed in the clause was quite high enough, and much more likely to effect the object which the Committee had in view than if a heavier punishment were imposed.

§ COLONEL BARNE
suggested that the clause should be so worded as to provide that a person convicted on indictment, or information under it, should be made liable to a fine not exceeding £1,000. If it were framed in that way, the fine might be made large or small, as the Court might think fit, and justice would be done in accordance with the circumstances of each case as it arose.

§ COLONEL STANLEY
said, he entirely concurred in the opinion which had been expressed by more than one hon. Member, that if too heavy a penalty was imposed, it would be likely to defeat the object of the clause: The lighter the penalty the more likely would an offender be to be convicted.

§ MR. BIGGAR
thought the proposal of the hon. Member for Kirkcaldy was a very reasonable one. The Court, in his 1895 opinion, should have the power to sentence a man to imprisonment for such offences as those against which the clause was directed, amounting, as they did, to a fraud on the public. He saw no good reason, indeed, why imprisonment should not be inflicted in such cases, in addition to a fine of £100.

§ MR. E. JENKINS
said, he should not, in deference to what appeared to be the feeling of the Committee, press his Amendment, on the understanding that some such words as he had proposed should be afterwards inserted at the commencement of the clause.

§ COLONEL STANLEY
said, he would consider the matter before the Report.

§ SIR GEORGE CAMPBELL
moved, in page 81, line 9, after the word "pounds," to insert— Or to imprisonment with or without hard labour for any period not exceeding six months, and if an officer, on conviction by court martial, to be dismissed the service. Great scandals, he said, had in former days existed in connection with the sale and purchase of commissions, and it was not at all unlikely that underhand dealings might continue to go on—such as that of a rich man's son in the Army inducing his senior officer to retire, in order that he might obtain promotion. There were also, it should be borne in mind, other considerations and inducements which entered into the question besides money. An influential man in the commercial world might say to another that if he could get his son promoted he would make him a director of a railway company, or put him in the way of this or that good thing, or say" I will buy your house or your horse; name your own price." His experience in India told him that things of that kind did occur. The penalty for such offences ought, in his opinion, to be a real one, and not simply one which, he believed, many hon. Members regarded as a perfect farce. He was quite sure that, in the case of a rich man, the sacrifice would in no way operate as a deterrent against the violation of the provisions of the clause.

§ COLONEL STANLEY
said, he had no objection to accept the Amendment.

§ COLONEL BARNE
wished to know whether he would he in Order in moving 1896 the insertion of words in the clause, in lieu of the words " one hundred pounds," providing that the fine should not exceed a certain sum, say, £1,000?

THE CHAIRMAN
said, the hon. and gallant Member would not be in Order in then moving such an Amendment.

§ MR. PARNELL
moved, in page 81, to omit all the words from "unless," in line 24, down to the word immediately following the word " ignorance," in line 25, with the view of substituting for them the words, " if it be proved either that he acted with a knowledge." The words which he proposed to leave out, he said, proceeded on the principle of reversing the ordinary prescription of law, in accordance with which a man was deemed to be innocent until he was proved to be guilty. As the clause stood, a person buying, exchanging, selling, or pawning regimental property, or any blankets, bedding, or other articles, in regimental charge, had the onus thrown upon him of proving that he was innocent of the offence. Now, he could not see that that was at all necessary; and he hoped, therefore, the Committee would assent to the Amendment, and not alter in the present instance that which was, as he had said, the ordinary presumption of law.

§ MAJOR NOLAN
hoped his hon. Friend would not press the Amendment. The present law was very rarely put in force; but there was no doubt that soldiers found the opportunity very frequently presented to them of making away, if they felt so inclined, with a number of articles, which the person who bought them pretty well knew were not his property. In such cases, it was extremely hard to obtain a conviction, and those against whom such charges were brought were generally unworthy of sympathy. There might, of course, be instances in which the clause would operate harshly upon a shopkeeper or a pawnbroker who was ignorant that he was doing anything wrong in purchasing or receiving property from a soldier; but it was necessary to guard against the old 1897 hands in the garrison towns, who made a practice of dealing in that way, and it would be, in his opinion, inexpedient in any way to weaken the law as against them. The penalty was only £20, and he knew no case in which the law as it stood had been abused. The hands of the authorities, he thought, should be strengthened in seeking to put down those offences, which, so far as the soldier was concerned, were committed for the purpose of procuring drink.

§ MR. HOPWOOD
said, that if the law was only rarely put in force, as his hon. and gallant Friend (Major Nolan) stated, that was a very good reason why the Committee should not be asked to make, in the present instance, an exception to a general rule. The point the Committee had to consider was whether the law was open to objection or not, and they must not trust to its being seldom put in force in dealing with that point. His hon. and gallant Friend also stated that the penalty was only £20; but he found that in case of a second offence a person might be imprisoned with or without hard labour, and he, for one, could not see the justice of calling on a prisoner, under such circumstances, to prove his innocence. Indeed, it was almost impossible in the majority of cases that he could do so. And he would point out when the Merchant Shipping Act was passed through the House there had been very animated discussions on the question whether the captain of a ship should or should not be called upon to prove his own innocence. He, for one, objected to such a course of legislation as that proposed by the clause; and he should suggest the substitution of some such words as " unless it appears he acted in ignorance," for the words "unless he proves he acted in ignorance." If that were done, the presumption that a man acted in ignorance, and was, therefore, innocent of the offence with which he was charged, would not be made the subject of positive proof, which, as he said, it was almost impossible for him to furnish in the majority of cases. He hoped his hon. and learned Friend the Attorney General would assent to some such modification of the clause.

§ THE ATTORNEY GENERAL(Sir JOHN HOLKER)
did not think there would be any use in adopting the suggestion of his hon. and learned Friend (Mr. Hopwood). To do so would only be to ren- 1898 der the clause more vague and indefinite. The objection, as he understood it, urged by the hon. Member for Meath (Mr. Parnell) against the clause in its present form was that it would throw the burden of proof on the accused person, thus reversing the ordinary presumption of law. It was natural that such an objection should be taken; but it happened in certain cases that it was almost necessary that the burden of proof should be shifted. The existence of certain facts raised a strong presumption of guilt, and in such cases the onus of proving his innocence was, he thought, not unfairly thrown upon the person to whom those facts pointed as having committed the offence. If, for instance, certain property was stolen, and it was immediately after found in possession of someone, there would be a strong presumption that that person was in some way implicated in the theft, and he might very properly be called upon to account for the way in which it had come into his possession. It was most desirable, he might add, to prevent such offences as the pawning of equipments, regimental decorations, and other things enumerated in the clause; and if it were necessary to prove in every instance that the person in whose possession they happened to be found had obtained them by fraudulent means, it would be extremely difficult to procure a conviction. A man who was accused of a theft must know better than anybody else how he came by the stolen property, and would, of course, give the necessary information about the matter. In a great many cases it would be utterly impossible to bring forward proof of fraudulence; and it was, therefore, in his opinion, not at all unreasonable that the man found in possession of stolen property should be called upon to account for its possession. It was, however, worthy of consideration whether words should not be introduced into the clause enabling the accused person to give evidence in his own behalf. If he were innocent, it would, of course, be a great advantage to him to be afforded the opportunity of doing so, and would, in all human probability, be the means of securing his discharge. If, on the other hand, he were guilty, such a provision as he (the Attorney General) suggested would almost certainly lead to his conviction; because, if his story were not true, the evidence which he would give would 1899 be very likely to establish his guilt. He hoped, therefore, the hon. Member for Meath (Mr. Parnell) would not press his Amendment, on the understanding that a provision should be inserted in the Bill providing that a person accused under the operation of the clause should be enabled to give evidence on his own behalf.

§ COLONEL COLTHURST
bore testimony to the magnitude of the evil against which the clause was intended to provide. In North America, for instance, desertion would be simply impossible but for the existence of a class of persons who bought, generally for a very trifling sum, the accoutrements of the soldiers. He should like, therefore, to see the clause left as it stood, so that the law might effectually reach those offenders.

§ MR. HERSCHELL
thought that the Amendment which had been suggested by the Attorney General would carry out the object which the hon. Member for Meath had in view.

§ MR. BIGGAR
was of opinion that the proposal of the Attorney General would not meet the difficulties of the case. He preferred the words which had been suggested by the hon. and learned Member for Stockport (Mr. Hopwood). To treat a person as guilty until he was able to prove a negative was, he thought, a great injustice, and there would be no advantage in allowing an accused person to give evidence, because the court would not in all probability believe him.

§ MR. E. JENKINS
thought the suggestion of the Attorney General might very well be accepted by the Committee, or the word " knowingly " might be inserted in the 10th line, and then the clause would read—" every person who knowingly " committed any of the offences to which it related.

§ THE ATTORNEY GENERAL(Sir JOHN HOLKER)
said, it would be extremely difficult to give proof that a man who was found in possession of stolen property came by it knowing it to have been stolen; and the object of the clause would, therefore, be in a great measure defeated if the word " knowingly" were inserted. As to the argument of the hon. Member for Cavan (Mr. Biggar), that if an accused person were allowed to give evidence in his own behalf the magistrates would not believe him, he could only say that if he were a 1900 man who ought not to be believed it was not desirable that he should be. The provision he had suggested would, he thought, meet all the difficulties of the case.

§ COLONEL BARNE
asked whether the clause would apply to the Colonies?

§ THE ATTORNEY GENERAL(Sir JOHN HOLKER)
said, it appeared to him that it would.

§ MAJOR O'BEIRNE
could not see what objection there could be to framing the clause in accordance with the words of the old Mutiny Act.

§ MAJOR NOLAN
agreed with the Attorney General in thinking that if the word "knowingly" were inserted in the clause it would be very hard to procure a conviction under it. In fact, there were always some scoundrels outside barracks who were constantly encouraging the soldier to plunder; and he, in a moment of weakness, yielded chiefly for the purpose of being able to get drink. Those persons ought, he thought, to be severely punished.

§ MR. PARNELL
said, that before referring to the proposition which had been made by the Attorney General he wished to state that he did not like the clause at all. It was, in his opinion, a very unsatisfactory clause, and ought to be withdrawn, with the view of its being remodelled on the lines of the old Mutiny Act. No case, he contended, had been made out by the Government for the extension of the powers which they possessed under Clause 85 of that Act; and it was an extension of those powers to provide that a person accused of any of the offences enumerated in the clause should be called upon to prove his innocence. If any such alteration had been really required, the precedent set in the Act applying to the Navy would, he could not help thinking, have been followed long ago, and some such provision as the present would have been made in one of the annual Mutiny Acts. However, he would not press his Amendment on that occasion, and would accept the suggestion which had been made by the Attorney General.

§ THE ATTORNEY GENERAL(Sir JOHN HOLKER)
said, he would introduce words on the Report enabling an accused person to give evidence on his own behalf.

§ MR. PARNELL
thought it would be better that the proposal of the hon. and learned Gentleman should be embodied in a new clause, so that the Committee might have an opportunity of discussing and considering what the effect of the words which he suggested would be. They could not be conveniently discussed on the Report.

§ THE ATTORNEY GENERAL(Sir JOHN HOLKER)
said, he would consider the matter.

§ MR. PARNELL
said, the next Amendment which he had to move was merely a verbal one; but it was necessary in order to prevent ambiguity. The clause provided that every person who committed any of the offences to which it related should be liable to fine and imprisonment, unless, among other things, he was able to prove that the property found in his possession was sold "by order of a Secretary of State, or some competent military authority." Now, he thought the authorities ought to be called upon to prove that themselves; and he should, therefore, move the insertion, after the word "or" in line 26, of the words "if it be proved." It was obvious that the military authorities would always be in a position to prove that certain articles had not been sold by their authority.

§ THE ATTORNEY GENERAL(Sir JOHN HOLKER)
said, that although it might not be difficult for the military authorities to show that some goods belonging to them had been sold, it might not be easy for them to prove that the very goods in question had been sold. De did not think, therefore, it would be reasonable to throw upon them the burden of proof in the matter.

§ MR. HOPWOOD
said, there would, in his opinion, be no injustice in presuming that goods which were found in a man's possession, and which were marked, for example, with the Royal Arms or the Broad Arrow, had not been sold by order of a Secretary of State, or some competent military authority.

§ MR. PARNELL
said, he would not press the Amendment.

§ MR. PARNELL
moved, in page 81, line 35, to leave out the words "and in addition," and insert "or." This was a 1902 question of punishment, and the point was whether it was fair to give, in addition to the fine, punishment in the form of imprisonment? It was not usual to do this in summary jurisdiction courts; in fact, he was not sure that it was legal. He hoped the Government would agree to the Amendment.

§ COLONEL STANLEY
thought that the reason that the pecuniary penalty was accompanied by one of imprisonment was that a fine alone was found not to be sufficient as a deterrent. It was found that many of these people made a regular trade in this business, and the profits were so large that a fine did not meet the case. The consequence was the imprisonment was also awarded in certain cases.

§ MR. HOPWOOD
was at a loss to know why, if the profits from this business, as it was called, were so large, the Government should not multiply the fine, say, three times. He should have thought that that would have been sufficient to keep down the offence. It seemed to him that it was clear that the punishment awarded in addition to the fine was excessive, and he hoped the Government would accept the Amendment.

§ COLONEL MURE
said, he hoped the right hon. and gallant Gentleman would not give way in this matter, which referred to one of the greatest difficulties they had to deal with in connection with this branch of the Army question. If he had his way, he should be more inclined to increase the penalty than to reduce it in connection with the offence of soldiers selling their kits. Those who bought them, as a rule, knew very well the offence they were committing; and they did their best, in fact, to induce soldiers to commit petty thefts of this nature. He sincerely trusted that in no way would the attempt made to diminish the punishment he successful.

§ COLONEL ARBUTHNOT
said, that he hoped the hon. Member for Meath (Mr. Parnell) would on this occasion show some deference to the views of those who had experience in these cases, and withdraw his Amendment.

§ MR. O'DONNELL
said, the objection to the clause was that it imposed a double penalty—imprisonment as well as fine. That seemed to be a very surprising proposal to make to the House, 1903 and he thought the best course the Government could adopt would be to accede to the Amendment of his hon. Friend. He thought the suggestions which had been thrown out, if adopted, would be found much more successful in promoting a diminution of this class of crime than the system which had been unsuccessfully pursued hitherto. Besides, he wished to point out to the Committee that if they were to surround thefts from Government Departments with all these pains and penalties, they would tend to produce an impression in the minds of the officials that it was not necessary for them to exercise ordinary precaution and care in guarding the public property committed to their charge. He thought this would have a most pernicious effect, and it was entirely opposed to the notion of the Secretary of State fir War, which would tend, in his opinion, to laxity in Government Departments. He did not see why Government officials should be tempted to take things easily by having greater safeguards provided for the property under their care than was the case with regard to private property. He was entirely opposed to exceptional legislation of this sort, which very often defeated its purpose. That was one portion of his objection. Then, as to the point raised by his hon. and learned Friend the Member for Stockport (Mr. Hopwood), the excessive character of the punishment was noticeable; and he would point out to the Committee that excessive punishment always tended to produce a re-action in favour of the person liable to the excess of the punishment. If the penalty imposed was of a reasonable character, such as was imposed on receivers of other kinds of property, no sympathy was created; but when they found men punished in an excessive degree for this particular kind of offence, then there was likely to be produced a corresponding amount of sympathy in relation to the accused parties. There was always a tendency to create sympathy in proportion to the excessive character of the sentence. It was much better to inflict moderate penalties than to fling out sentences which inevitably led to a re-action in the public mind in favour of the class to whom the accused parties belonged.

§ MR. PARNELL
said, what he objected to was not so much an increase of 1904 punishment as having this accumulative punishment. They had not accumulative punishment in civil matters, and. he was entirely at a loss to know why they should have it in military cases. No necessity whatever had been shown for the increased punishment awarded in these peculiar cases; but if the Government wished, let them give a magistrate the option of inflicting either a fine or a term of imprisonment, as was done sometimes in civil cases. Do not let them say that the Judge, whoever he was, in this case must inflict both penalties. That was contrary to the spirit of our law; but that did not excuse it. If they found it necessary to give a man 12 months with hard labour, let them give it to him; but do not let them in addition to that inflict a pecuniary penalty. Let them have one or another; do not let them have both.

§ MR. CHILDERS
said, that, having been appealed to by his right hon. and gallant Friend (Colonel Stanley), he was obliged to say that cumulative penalties had not been imposed by the Act of 1869.

§ COLONEL STANLEY
said, lie must apologize for having misled the Committee with regard to the law having been altered once or twice. Therefore, he proposed to follow the Act referred to, and not make the punishments accumulative.

§ COLONEL MURE
asked whether it would not be advisable to give punishments for a longer term under these circumstances? [Mr. PARNELL: No.] He (Colonel Mure) thought the proposal as to treble the value of the article was absurd; but should like to know what was the treble value of an old coat? He said the value ought not only to be trebled, but ought to be increased by 10 times. [" No, no! "] Don. Members shouted "No, no!" but they had no knowledge whatever of how rife these offences were. Offences were constantly being committed, and though they were small they were very annoying; and he had not a shadow of a doubt in his own mind that the facilities given for these thefts by the receivers were, to a great extent, responsible for the increase of desertion throughout the Army. He hoped the right hon. and gallant Gentleman would not diminish the penalty, but rather increase it.

§ MR. HOPWOOD
said, it seemed to him that the matter as it now stood had been placed in its right position by the right hon. and gallant Gentleman the Secretary of State for War.

§ MR. MORGAN LLOYD
said, he was very much surprised that the right hon. and gallant Gentleman should depart from what he had already placed in this Bill. It certainly seemed to him, after carefully looking into the matter, that the clause, as originally framed, was not open to the objection that it imposed cumulative penalties. A simple fine might be a sufficient punishment for a first offence, and it would not be unreasonable to make a subsequent offence punishable with fine and imprisonment. The offences dealt with by the clause were numerous, though not of a serious nature, and a gradation of punishment should be adopted to meet the varying circumstances.

§ MR. PARNELL
said, he did not intend to propose his next three Amendments, as they were governed by an agreement made with regard to another clause; but in page 82, line 5, he proposed to leave out from " and " to end of sub-section, inclusive. He thought that the provision as it stood was an exceedingly objectionable one, because it cast upon persons charged with the offence the necessity of disproving it—an exceedingly difficult thing, when he knew that obliterations of marks were made by persons who had an object, of course, in making those obliterations, and once they were made the place of those obliterations might very easily escape the notice of the person into whose possession the property came.

§ THE ATTORNEY GENERAL(Sir JOHN HOLKER)
said, he thought the words objected to by the hon. Member might reasonably be left out.

§ MR. PARNELL
said, he did not intend to move his next Amendment, because it was governed by an arrangement previously made; but in page 82, line 15, he would move to leave out from "and " to end of sub-section, in- 1906 clusive. It appeared to him that the sub-section gave a very objectionable power—it gave to the man power to act as a constable. He thought that care should be taken to obtain the intervention of a constable. It seemed to him to be an un-English proceeding to collar a man and take him off to gaol at once, without calling in the recognized agent of the law. This was not allowed in ordinary life, and he did not see why it should be introduced into military.

§ THE ATTORNEY GENERAL(Sir JOHN HOLKER)
said, he did not quite see why there should be so much sympathy with these people. The offences they committed were serious, and if a man committed an offence of this kind, surely there was no injustice in allowing him to be apprehended. Though it might not be by a policeman, it seemed to him that the person to whom the goods were offered should have the power to take a man into custody. It might be more regular to hand the man over to a constable at once; and, no doubt, in every case where that could be done it would be done. There were analogous cases, and it was not at all uncommon, in cases of stolen property, to detain the party charged until a constable arrived. In this case, where there was ground for reasonable suspicion, power was given to detain and bring before the Justice of the Peace the party offering the articles. De did not know that there was anything wrong about that.

§ MR. PARNELL
said, it might be undesirable to disturb the Act to which the hon. and learned Gentleman referred, and, therefore, he should not press his Amendment.

§ MR. PARNELL
said, he begged now to move, in page 83, line 2, to leave out from " on " to " otherwise," in line 3, inclusive. He did not see why an exception should be made in the case of the Legislature of a Colony, whereby the Legislature of a Colony would be prevented from reducing a fine, unless the Government of the Colony recommended it. He thought they might fairly leave such a power to the Legislature of the Colony.

§ MR. E. JENKINS
hoped that the hon. Member would withdraw the proposal.

§ MR. O'DONNELL
hoped that his hon. Friend would do nothing of the kind. Suppose, in the case of an important Colony, that the Legislature should take it into their heads to pass an Act reducing that fine, then, unless we were to embark in a contest, in which we might be quite sure we should get the worst of it, we should have to give way on this point. There was no use passing an Imperial Act, which would have the tendency to run counter to Colonial views.

§ MR. CHILDERS
said, he was not likely to take the side of giving excessive power to an Imperial Government at the expense of the Colonies; but if there was one Imperial Prerogative more than another recognized in the Colonies as a matter not to be interfered with by the Colonial Legislature, it was that which related to the discipline of the Army. No interference with this Act should take place without the previous assent of the Imperial Government through the Governor.