Jurisdiction. (Hansard, 8 July 1879)

§ MAJOR O'BEIRNE
moved, in page 83, line 10, after "offence," to insert— Or if a purchase officer to be deprived, unless by sentence of court martial, of any portion of any sum of money he may be entitled to receive from the Army Purchase Commissioners.

THE CHAIRMAN
ruled that the point raised by the hon. and gallant Member would be the subject of a separate clause; and, therefore, it could not be discussed on this Amendment.

§ MR. BIGGAR
suggested to his hon. and gallant Friend that he might move to add this Amendment to the end of the clause.

§ MAJOR O'BEIRNE
said, ho would postpone his Amendment.

§ MR. PARNELL
moved, in page 83, line 20, to leave out from "except" to "enlistment," in line 21.

§ COLONEL STANLEY
pointed out that the clause, as it stood, met the abuse; and he hoped the hon. Gentleman would not press the Amendment.

§ MAJOR NOLAN
moved to add to the clause— Provided That the rules of military and martial law in the place where the crime is committed be the same as those prevailing in the place where the court martial has been commenced and sits. He referred to the case of the trial of Gordon, in Jamaica, and said that his object was, in moving the Amendment, to prevent such a similar case occurring again. In that case, as the Committee were well aware, Gordon was removed from a district where martial law did not prevail to a district in which it did operate, and there he was tried and sentenced. Now, this Amendment would make such a proceeding as this quite impossible, and it was of the utmost importance that this provision should be inserted. They had had the views of two eminent Judges on the case of Governor Eyre—Lord Chief Justice Cock-burn and Justice Blackburn. The Lord Chief Justice condemned the proceeding, and Justice Blackburn took an opposite view. But he did not think there could be any question whatever as to the impropriety and illegality of removing a man from a district in which he resided in order to bring him under laws of a different nature in another district. He did not think that such a case as Gordon's should ever arise again. The Government would fly in the face of a mutiny, and take a prisoner from one part of the district to another. In his Amendment, after the word "same," he wished to insert "with regard to that crime." If this proposal of his had been in operation at the time Gordon was removed from Kingston, he could not have been tried or executed, and the case would never have arisen. He had no preference for the words in his Amendment; if the principle of it were adopted, he should have no objection to withdraw the Amendment, and give place to one framed in a different way. 1909 But the case was one of such enormous importance that now they were re-considering the whole of the Military Law it was essential that something should be done to put martial law in order. People were in doubt as to the difference between military law and martial law. The object of martial law was to make civilians liable to military law; and if they declared that a certain thing could not be done under military law all parties would be protected.

§ SIR HENRY JAMES
said, he really did not understand the Amendment of the hon. and gallant Gentleman—he meant he did not quite appreciate it. If he did, he should be happy to support him in carrying it out. Was the meaning this—that where a person was found in a certain place they might try him; but they must not move him back to a place where the offence was not committed? They ought not certainly to remove a man from where martial law did not exist to a place where martial law was in operation, and there try him.

§ MAJOR NOLAN
said, that had been done.

§ SIR HENRY JAMES
said, if so, it was an illegal act, and if the hon. and gallant Member would look at the law he would find that it was so. The hon. and gallant Member's Amendment was in these terms— Provided, That the rules for military and martial law in the place where the crime is committed be the same as those prevailing in the place where the court martial has been commenced and sits. Well, the rules of military and martial law were the same everywhere. And the Amendment as framed would not prevent an illegal removal from a district where martial law did not exist to a district where it did.

§ MAJOR NOLAN
could only refer the lion. and learned Gentleman to the case of Gordon. Governor Eyre took Gordon out of the district where ordinary law was in force to a district where lie could be brought under the operation of martial law. He had already mentioned that there was serious difference between the Judges on these points; but he hoped and trusted that all doubt would be removed. His object was to remove all doubt, and the law as it stood was, he maintained, extremely doubtful. The Chief Justice charged against it, and Justice Blackburn went the other way. 1910 This was a most fitting time to make some declaration in the Bill to prevent a similar grave injustice, and the only way to make sure was to have the words clear and distinct in the Act. He was not particular as to the words, so long as it was made clear that a man should not be removed from a civil law district to a martial law district; and he believed it was the duty of the Committee to take steps, whether in the form he proposed, or in another form, to prevent a repetition of the Gordon ease.

§ COLONEL STANLEY
said, he quite shared in the feeling as to the importance of the point raised by the hon. and gallant Gentleman; and he granted that if the matter were not perfectly clear it would be necessary or advisable to entertain such a proposal as he had submitted to the Committee. But he would not like to admit by implication that military law and martial law were synonymous. He wanted to point out what they would do if they adopted this Amendment. They would be making the most important change in a manner which he thought was open to considerable objection. He thought this was a subject which ought to be dealt with in some other manner; and he would propose that the object aimed at by the hon. and gallant Member would best be achieved by the bringing up of a new clause. As far as military law was concerned, this Amendment did not seem necessary; and with regard to martial law, he confessed he humbly agreed with the hon. and learned Gentleman opposite that there ought to be no doubt whatever about the law on this subject.

§ SIR ALEXANDER GORDON
said, he hoped the Committee would keep the two questions of martial law and military law separate and distinct. They had nothing whatever to do with each other. The hon. and gallant Member for Galway was, he thought, mistaken in supposing that martial law was in any way derived from the Mutiny Act. The Mutiny Act gave no power to have martial law, and he thought it would be a most fatal mistake to put words into the Bill renouncing martial law. He had himself proposed to ask for an inquiry into this subject; but he had decided not to go on with it, because the Business of the House was so great. De only rose now to express a hope that 1911 the Secretary of State for War would not accept the Amendment.

§ SIR HENRY JAMES
said, that he understood the view of the hon. and gallant Member to be this—that where a person committed an offence against military law, he should not be conveyed from that district into a district where martial law existed, and there tried. He thought everyone would agree that these two things were quite distinct. That might be what was done in Governor Eyre's case in relation to Gordon; but he did not rely on that. He did not think it was possible that such a thing could be done again. De would submit to the hon. and gallant Member the following words:—[The hon. and learned Member then read, in a tone which did not reach the Gallery, the words of the Amendment.]

§ COLONEL STANLEY
said, he was willing to accept this proposal.

§ MAJOR NOLAN
asked leave to withdraw his Amendment.

§ SIR ALEXANDER GORDON
reminded the Committee that this was the first time the expression, martial law, had been recognized, and he did think it was a dangerous thing to sanction the expression of martial law in the Mutiny Act. It was the first time that martial law was recognized as part of the law of the land.

THE CHAIRMAN
said, he must point out to the Committee that it was questionable whether this Amendment fell within the clause. The Amendment had reference to martial law, and appeared to him to be outside the subject then before the Committee.

§ MAJOR NOLAN
said, that after that statement he did not think he could withdraw. The hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) said that this was the first time they were recognizing martial law; but he referred the hon. and gallant Member to Simmonds on Courts Martial. Their Imperial law was frequently referred to; and it was quite clear that, in passing the Mutiny Act, they might modify martial law. If they were to pass this clause as it stood, they would be laying the foundation for proceedings similar to those which had happened in Jamaica; and he felt that it was necessary to put in this Bill a specific declaration, pointing out that it did not extend to martial law. He 1912 considered that the Amendment had been greatly improved by the words suggested by the hon. and learned Member for Taunton, and he could not see what there was out of Order in proposing it.

§ MR. MUNTZ
said, he thought the Committee was very deeply indebted to the hon. and gallant Member for Galway (Major Nolan) for bringing forward this important subject. They had not had the question of martial law decided. They had the opinion of the Lord Chief Justice and of Justice Blackburn—one opposing the other. Now, martial law was well understood when it was proclaimed in foreign countries. It dealt with all offences which took place after the proclamation. But in the case mentioned by the hon. and gallant Member for Galway—the case of Gordon—he was tried for an offence committed 12 months before martial law was proclaimed. Such a thing as that would not be possible in Russia or Austria. If it was felt that this was not an opportune place to make the Amendment desired, by all means let the proper one be pointed out, and availed of. It was important that care should be taken to prevent the recurrence of the lamentable execution in Jamaica.

§ SIR HENRY JAMES
said, he expected the ruling of the Chair, and, in fact, his own view was that this Amendment was hardly necessary. But he was anxious to bring the discussion to a close. Martial law was no law at all. It was a subject that was not, and could not be, dealt with by this Bill. This was a Bill to regulate military law, to which, and not to martial law, soldiers must be subjected. He agreed that they were treading on dangerous ground. He hoped the hon. and gallant Member would be satisfied now that the attention of the Committee had been drawn to the subject, and that he would withdraw the Amendment.

§ MR. PARNELL,
although it might appear to be taking a great deal upon himself, could not altogether agree with the view of the hon. and learned Member for Taunton (Sir Henry James). It appeared to him that the Legislature had been guilty of a grave omission in not codifying military as well as martial law; because it so happened that whenever martial law was proclaimed in a country, it was practically a suspension 1913 of all law. Therefore, he thought that if power was to be left to the Commander-in-Chief to proclaim martial law in any country the power should be limited and the law codified, and that it should not be permissible to administer any law which was not subject to some careful scrutiny. He did not think this could be done in a clause added to the Bill, unless it was decided that all the provisions of military law were necessary where martial law was proclaimed. For instance, martial law was proclaimed at that moment in South Africa; but it would be obviously unnecessary to have all the provisions in this Act proclaimed there. But a certain number of clauses might be picked out from this Bill which could be made to govern the actions of Commanders-in-Chief, and by-that means the abominable abuses which always had and always would exist wherever martial law was proclaimed would be avoided, and the law would be redeemed from the horrible atrocities and unjust treatment of the inhabitants for which it was now answerable. Martial law should be strictly limited and governed by law, instead of being beyond all law.

§ MR. PARNELL
moved, in page 84, line 5, to leave out "three years," and insert " one year."

§ COLONEL STANLEY
said, the clause, as it stood, was practically a great relaxation of the existing law, and had been very carefully considered. If, however, the Committee were so minded, he had no objection to substituting " two years," instead of the three years mentioned in the clause.

§ SIR ALEXANDER GORDON
said, Clause 97 of the existing Act required that the term should be limited to three years; there was, therefore, no relaxation in the present case. He hoped that the words of the clause would be retained.

§ MR. PARNELL
thought it unfair that hon. Members on his side of the House should prevent the Secretary of State for War mitigating the terms of the clause, seeing that he had expressed his readiness to do so.

§ SIR ALEXANDER GORDON
rose to Order. Was it competent to an hon. Member to say that another hon. Member was unfair in expressing his opinion upon a question before the Committee?

THE CHAIRMAN
could not say that the expression used by the hon. Member for Meath (Mr. Parnell) was out of Order.

§ SIR HENRY JAMES
said, he had understood the right hon. and gallant Gentleman to be anxious to get the opinion of the Committee upon this point. There was at Common Law no Statute of Limitations which would prevent the trial of persons after any particular time; therefore, there was no injustice in saying that a person should not be tried for any offence committed three years before the date of trial. De could see no advantage to the public in this Amendment.

§ MR. PARNELL
proposed to leave out the words from the word "but," in line 14, page 84, to the end of the clause. The matter referred to, he considered, should be left to the discretion of courts martial. These peremptory provisions in an Act of Parliament were very objectionable, especially in the case of fraudulent enlistment.