§ Bill considered in Committee.
§ (In the Committee.)
§ SIR GEORGE CAMPBELLsaid, that hitherto he had taken no part whatever in the discussions regarding flogging in the Army, not because he did not take a great interest in the subject, but because he felt great difficulty as to the course which he ought to take. He felt that difficulty still. Her Majesty's Government seemed to him to be afraid to pledge themselves to the complete abolition of the punishment. Although they had, so to speak, narrowed the flogging to a minimum, they were not prepared to abolish it altogether. He had placed upon the Paper an Amendment in the nature of a compromise—a compromise which reduced the liability to punishment—and he was not without that Her Majesty's Government would give a favourable consideration to that view of the case. He had had considerable opportunities of watching the matter. Those who had a greater personal acquaintance with the subject than he had himself were in favour of retaining the punishment. Officers in the Army, who were engaged on active service, were almost unanimous in deprecating the abolition of flogging. They said that the British Army could not be managed without it. At the same time, when he had seen the pertinacity with which Doctors of Medicine and Professors of Theology stuck to the dogmas of their own Profession, he did not think that the opinion of military men should 448 be regarded as conclusive on the subject. It must be borne in mind that flogging had been got rid of in regard to foreign Armies. In the Indian Army, the Sepoys had the same dislike to being flogged that most European soldiers had; and, as a matter of fact, the punishment of flogging was retained in the Indian Army, not so much to be used, but because it was felt to be a scandal to retain it against the European soldier and do away with it in regard to his black brother. So far as his own experience went, it had not induced him to believe, in any great extent, in the necessity for flogging. His experience had been in connection with comparatively seasoned troops, who had gone through the absolute work of war, and not with mere raw recruits. He had seen Her Majesty's troops under very trying circumstances, in the campaigns which followed the Indian Mutiny; and, on the whole, his experience was highly favourable to the discipline of the regular soldier in Her Majesty's British Army. Seasoned troops were trained and disciplined to such an extent that, so long as those in authority over them did what they could to keep them in order, most of them were not likely to commit excesses requiring such a punishment as the lash. He might instance the 9th Lancers, at one time commanded by his late gallant friend Sir Hope Grant. In that regiment, they would as soon have thought of flogging the men as of flogging Members of that House. As regarded the great majority of Her Majesty's troops, they were men of good character, and were not liable to fall into excesses such as it was considered necessary to meet by the barbarous punishment of the lash. When they did break out into excesses, his opinion was that it was more the fault of those in authority than of the men themselves. Properly commanded, and restrained by officers in authority over them, they would not require this barbarous punishment. But, on the other hand, it had been felt, almost by every man who had had any experience of the British Army, that that Army differed from Continental Armies in this—that it contained within its ranks a class of men much more difficult to deal with than was to be found in Continental Armies. The British rough was, no doubt, a worse character than was to be found in any 449 Continental country; and when they had the British rough in the British Army it was found necessary to treat him as a rough, or to let him go away altogether. They were in this dilemma—that when they had men of this character made into soldiers, and rebelling against discipline, they must either bring them into submission, or say—"You have made yourself so disagreeable that you may go." The opinion was that the only remedy for this state of things was having recourse to the punishment of flogging. It had been his duty to control the administration of punishments of this kind among great populations; and he had been compelled, if he might so express it, to study the subject. The result of that study was certainly not favourable to the punishment of flogging. Without speaking from the popular point of view, but looking at the question in a scientific point of view, flogging partook of the nature of torture. Speaking also in a scientific point of view, he was not altogether against torture as a punishment; but of all the forms of torture used for the punishment of crime, the punishment of flogging was the very worst, because it was the most uncertain in its effects, and for this reason—because the effect of the punishment of flogging upon any man must depend enormously upon the character of the flogger, and also upon that of the floggee. He was prepared to assert, from practical experience, that an enormous amount of the effect of the punishment depended on the man who laid it on. They might have a man who would lay it on in such a manner as to make it a severe punishment indeed; while, in another case, it might be so laid on as to make it no punishment at all. It was not always that the mere observer could detect the punishment that was severe from the punishment that was trifling. They might have a man who laid on the punishment with a great deal of fuss and fury, and yet did not make it tell; and, on the other hand, they might have a scientific flogger, who would make every cut tell. Then, as regarded the physical effect, he had seen some men who would stand an immense amount of flogging, and scarcely feel it; whereas there were others to whom it was an exceedingly severe punishment; so that a flogging which would nearly kill one man, was really 450 laughed at by another. On the othe hand, in a moral point of view, they had many men who did not care for that sort of thing. To come to the practical part of the matter. What he wished to ask the Committee to bear in mind was this—they had now gone so far in the matter that they could not, in future, make use of that heavy amount of flogging, which made it a severe and almost barbarous form of punishment, for the punishment of great offences. It was totally impossible that they could ever return to the very severe form of the punishment of flogging in use in days not very far removed. They had now limited flogging to 25 lashes; and he was also inclined to think that the instrument with which it was to be inflicted was a much more harmless instrument than it was in olden times. They had been discussing the question of flogging in the Army; but he did not think an Army cat had been produced for their inspection. They had had a Navy cat. He had himself inspected the last specimen of the Navy cat sanctioned by the First Lord of the Admiralty—and he found that it was very much what he should have expected from the amiable character of the First Lord. It was of a somewhat soft and flexible nature. Indeed, if it were necessary that he (Sir George Campbell) should undergo a flogging he should scarcely object to be flogged with it himself. The moral he wished to draw from all this was this—in the course of the discussion the hon. Member for Bedford (Mr. Whitbread), a Member very much respected by the whole of the House, threw out a suggestion that the punishment of flogging should only be inflicted as an alternative for the penalty of death. He (Sir George Campbell) observed, from the nodding of heads on the other side, that that suggestion was received with some favour by the right hon. Gentleman the Home Secretary and other Members of Her Majesty's Front Bench; and what he wanted to impress on the Committee, as the result of his practical experience, was that this mild punishment of 25 lashes, inflicted with a comparatively harmless cat, would be an utter farce, and altogether ridiculous as a punishment for heinous offences. He gathered that they wanted to apply the punishment of flogging for minor offences committed on active service—such as plundering on the march, breaking into a hen-roost, or entering a vine- 451 yard, where they required a short, sharp, and exemplary punishment. The advice, then, which he wished to submit to Her Majesty's Government was that they should make up their minds either to retain the punishment of flogging for petty offences on active service, or to get rid of it altogether, and to wipe out what, to a certain extent, would be a thorn in their side if it was retained. He, for one, was in favour of trying the effect of abolishing the punishment of flogging altogether; but, considering that the compromise of retaining it for heinous offences was not possible, he proposed to submit, by the Amendment which he had placed on the Paper, another compromise, and that was that they should put the matter on this footing—that a new or a good man, on entering the Army, should not feel that there was, from day to day, hanging over him, if he got into a scrape for some little peccadillo, arising out of the excitement of the moment, the apprehension that he might have rendered himself liable to the punishment of flogging, and to feel disgraced for ever after. He wished the Committee to save the really good and respectable soldier from that painful position; and he firmly believed that the fear of incurring this degrading punishment deterred a good many eligible and valuable men from entering the Army. The punishment, if it was to be inflicted at all, should be reserved for those who had already, by their acts and deeds, been stigmatized as dangerous characters, who had been selected and set apart as bad men. In regard to that class only, he proposed that the punishment of flogging should, in future, be inflicted. It seemed to him that there was a very good reason why this proposal should receive favourable consideration, for at the present moment it was actually the rule in the Navy. In the Navy it was only men who had been degraded to the second class that were liable to be punished by flogging. First-class men were not liable to be flogged at all. This was actually the rule for some time in the Army, and he did not know how it came to be abolished. Therefore, his proposition was merely to apply to the Army a rule which was once the rule in the Army, and a rule which was now actually the rule in the Navy. The effect of his 452 Amendment would be that no man would be liable to be flogged who had not previously been convicted of a disgraceful offence; and out of 1,000 or 100 men who were now liable to be subjected to that punishment there would, perhaps, not be one who would be liable to be flogged. This compromise would reduce the liability to flogging to an absolute minimum; and in that sense he hoped that those who objected to the punishment, and yet did not regard it as practicable to get rid of the cat altogether, would accept the compromise he suggested. The Amendment which he had placed upon the Paper, and which he now begged to move, was as follows:—In page 19, after Clause 44, to insert the following clause—
(Limitation of corporal punishment.)
"Any soldier convicted by court martial, in addition to any other punishment, may be declared by the court to be a bad and insubordinate soldier; and such soldier shall be entered on a list, to be called 'the bad list,' daring and for a period of one year after the currency of his sentence, unless the competent authority shall remit any portion of that period. No soldier shall be sentenced to corporal punishment who is not on the bad list previous to and at the time of his conviction.What he proposed was, that when the conduct and character of a soldier was bad—that when he had not only been guilty of a particular crime, but was declared to be a man of bad and insubordinate character—the sentence that rendered him liable in future to corporal punishment should be passed. He did not propose that a man should remain on the bad list for a long time; but that the sentence should only have effect for one year after the currency of the sentence; and that a competent authority should, have the power of remitting it at any time. The proposal provided that no good soldier should be liable to corporal punishment. The effect would be that in the Army no man of good character would be liable to be flogged; but if a man had committed a crime, and was declared to be of such character that he should be put on the bad list, then, in the event of his afterwards committing certain crimes, he should be liable to be flogged. He was of opinion that by consenting to a compromise of that nature the Committee would retain everything that was necessary; while, at the same time, good, decent, and respectable soldiers would not 453 incur the risk of being subjected to this disgraceful punishment.
THE MARQUESS OF HARTINGTONI do not rise, Sir, for the purpose of detaining the Committee at any length in respect of the new clause which has just been, moved by my hon. Friend. As to that clause, I entertain very considerable doubts whether the compromise he puts forward is one that would receive the sanction of either the opponents or the advocates of corporal punishment in the Army. I am afraid it would be altogether unsatisfactory to those hon. Members who desire to see the total abolition of corporal punishment, and I hardly think it would be satisfactory to many of its advocates, because it appears to me to diminish, in a very serious extent, the summary, swift and sharp application of the punishment which was felt to be of so much importance. I have no doubt as to the fair and conciliatory spirit in which the clause has been brought forward by my hon. Friend; and I have no doubt, if hon. Members who have more authority and knowledge on the subject than I have receive it with more favour than I think they are likely to do, the Committee will be disposed, to give it very careful consideration. But I rise principally for the purpose of taking this, the first, opportunity that seems to me a convenient one for making a few observations on the position this question has assumed, and which has been greatly modified since the Committee first engaged in any regular discussion of the subject of corporal punishment. The Committee is very well aware that I, and many of my Friends on this Bench, have given our support to the Government and to this Bill, not only on general grounds, but also as regards the provisions which relate to corporal punishment. I have myself voted with them on several occasions; and my hon. and learned Friend the Member for Oxford (Sir William Harcourt) has given Her Majesty's Government a considerable amount of assistance in the conduct of the Bill. Under these circumstances, I think I am entitled to say a word in regard to the provisions of the Bill which affects the question of corporal punishment. Hitherto, I have supported the proposals of the Government, and I have done so on this ground. I and my Friends have given our support to the clause affecting corporal punishment on this one, and 454 only, ground—that the discipline of the Army is a paramount consideration. I think we are pretty well agreed that the matter is one of the maintenance of discipline, and that there is no question of humanity involved in it. Her Majesty's Government have disclaimed, with perfect sincerity, any imputation of being less actuated by feelings of humanity than the most determined opponents of corporal punishment. There is one reason, and one reason only, that can induce any Member of this House to advocate the retention of corporal punishment—and that reason is that, in the opinion of the authorities who are responsible for the discipline of the Army, and in the opinion of the Government, who are responsible to the Army, that punishment is indispensable to the maintenance of discipline. Well, now, I am obliged to confess that what has taken place in the Committee has led me very much to entertain a very serious doubt whether the Government have really that clear, fixed, and firm conviction of the absolute indispensable necessity of that punishment which will justify Parliament in continuing it. In order to examine this question, I ask the Committee what has been the course which the Government have taken? The Bill was brought in to provide for the continuation of corporal punishment. It provided that corporal punishment should be inflicted for a large number of offences for which it had been before inflicted. After two or three days' discussion the Government came to the conclusion, on further consideration, that it was unnecessary to retain this punishment for the very large number of offences for which the Bill was originally introduced to provide. They made several concessions. In the first place, they agreed to insert in a Schedule a list of offences for which only corporal punishment should be inflicted. They then consented to a considerable reduction of the amount of the punishment which might be inflicted. Then there were other matters which claimed the attention of the Committee. The Government, I am sorry to say, in the discussion which arose as to the instrument by which this punishment was to be inflicted, showed a very considerable and unfortunate ignorance in regard to the circumstances under which the punishment was inflicted. I then come to the proceedings of Saturday 455 week last. On that morning, as the Committee will remember, the right hon. and gallant Gentleman the Secretary of State for War came down to the Committee and stated that very shortly he would be able to make an announcement of the intentions of the Government which he trusted would be satisfactory to the House. A discussion immediately arose on this subject, and various interpretations were placed on that declaration of the Government. A very general opinion was expressed—not on one side of the House only—that the announcement made by the right hon. and gallant Gentleman implied that the Government were prepared to re-consider the whole subject; and by many it was believed that the Government intended to announce the abandonment altogether of this punishment. I do not mean to go over the discussions which have since taken place. A great deal was said as to the exact terms of the information conveyed by the Secretary of State for War; but, in my opinion, a more important declaration was made by the Chancellor of the Exchequer. I hold in my hand an extract from the speech of that right hon. Gentleman, which, as far as I know, is correct. It is so important, that I hope the Committee will allow me to read what the right hon. Gentleman said. The Chancellor of the Exchequer said—
It was always a matter of great difficulty how they were best to restrain these outrages; and they had to consider whether corporal punishment was absolutely and essentially necessary for that purpose. Similarly, in the case of prisons, they had to consider the question of how discipline was to be maintained; and if they had to subordinate the first emotions of humanity to other considerations in the course of these discussions, the Government had been obliged to maintain and assert a stricter and severer view than that suggested by those who were merely actuated by the first emotions of humanity. His right hon. Friend the Secretary of State for the Home Department, however, had now declared that they were prepared to consider this question as a whole; and his right hon. and gallant Friend the Secretary of State for War had stated that he would be prepared, at a subsequent stage of the Bill, to make a statement to the Committee, as to the views of the Government on this matter."—[3 Hansard, ccxlvii. 1573.]Now, it seems to me it would hardly be too much to say that the effect of that statement was to produce an impression that the mere announcement, on the part of the Government, of such an intention in Parliamentary language meant that 456 they were prepared altogether to abandon the punishment. ["No!"] Supposing that the Government had arrived at that decision and intended to communicate it to the House on a future occasion, that was the Parliamentary language that would be employed for preparing the mind of the House for the announcement. I do not wish to give more importance to that statement than it will fairly bear; but the very least that can be said of it is that, in the opinion of the Government, on that Saturday morning, the subject was one which was open to complete re-consideration as a whole; that, in fact, it was for them, as well as for the Committee, an open question, and it was open for them as well as for the Committee to arrive at entirely opposite conclusions from those which had guided them up to that time. This is a very important question—on which I think it would be well that the Government gave a clear and not uncertain voice. It has been mentioned—and mentioned by persons who ought to have some knowledge of the subject—that this is, in fact, practically the decision at which the Government had themselves arrived—namely, that the punishment might be abandoned, and that they would not meet with any determined opposition from the military authorities in that abandonment. ["No!"] I am only repeating what has been remarked in other quarters, with some little appearance of authority; and I invite the Government, if it is not the fact, to take an early opportunity of giving it an explicit contradiction. Well, it is further said that the decision at which they arrived on Monday was not in consequence of any determined opposition on the part of the military authorities, but that it was in consequence of some feeling which it was perfectly well known took place in the Lobby of the House on Saturday and Monday week. It was also said that the decision announced was not that of the Government themselves, but a decision forced upon them by a certain section of their supporters. It then became the duty of the Opposition, seeing that the Government were re-considering their position, to reconsider theirs also. On Monday morning week, on consulting with several of my Friends who sit near me, I came to the conclusion which I announced to them at the time, and which I should have been perfectly ready to announce 457 to the House the same evening, if there had been any legitimate opportunity of doing so. The conclusion I arrived at was that whatever might be the decision announced by the Government on that evening, their conduct in regard to the Bill, the hesitation which they had shown, and the effect of their announcement on Saturday, was that they had no such clear conviction in their own minds of the absolute indispensable necessity of the retention of this punishment as would enable the House, or the Opposition portion, at all events, of the House, to continue to them the support which on that ground, and that ground only, had hitherto been given to them. I formed the opinion that, under these circumstances, the condition, and the only condition, essential to the permanent retention of this punishment had disappeared, except, perhaps, that there might still be pointed out very exceptional circumstances. I will now endeavour to explain to the Committee what I mean when I say that I think an exception to what I have stated might be made under exceptional and very limited circumstances. I think that the opponents of corporal punishment have been, to a very considerable extent, pressed by the argument, frequently used in the course of the debates on this Bill, that there are on active service certain occasions when particular crimes and offences are committed—such as insubordination in the field, or plundering on the line of march, or serious offences of that kind—where there is no alternative for the military authorities between corporal punishment and the extreme penalty of death. The opponents of corporal punishment have been somewhat pressed by that argument; and I presume that it was in that sense that my hon. and learned Friend the Member for Stockport (Mr. Hopwood) had placed on the Paper an Amendment, which has since been withdrawn, in which he proposed that corporal punishment should still be maintained, but only as the commutation of a death penalty. The clause which my hon. and learned Friend placed on the Paper was in these terms—"The authority having power under this Act to commute or mitigate any punishment may, without prejudice to any other power of commutation or mitigation conferred on such authority by this Act, commute a sentence of death 458 into one of corporal punishment to be inflicted in accordance with the provisions of this Act; but corporal punishment shall in no other case be inflicted.It seems to me to be clear, from the nature of the announcement made by the Government on Saturday week, that something of the kind was in their minds at that time. I am quite aware that there are many difficulties which may be brought forward by way of objections to this proposal. The most obvious of these difficulties is that it might happen that a court martial might pass a sentence of death without any intention that the punishment of death should be inflicted, but intending only that corporal punishment should be inflicted in its stead. The commanding officer, however, might think the offence deserving of death, and so the death penalty might be inflicted contrary to the intention of the court martial. I do not pretend to say that this difficulty is an insuperable one or not. It has been suggested that the difficulty might, to some extent, if not altogether, be obviated by a proceeding which certainly is not now a very common one, but for which there is a very ample precedent. I believe that, in many cases, it has been found expedient to preface a clause of a Bill by a Preamble, by which the intention of Parliament could be made perfectly clear. The objections which might be raised in this instance would be very much obviated if the clause which I have read were prefaced by a Preamble to the following effect:—"Whereas it is expedient that corporal punishment should no longer be in use except in cases where the punishment of death would be actually inflicted, unless corporal punishment were inflicted in lieu thereof, be it further enacted,and so on. I throw out this suggestion for the consideration of the Government. I believe that, if the Government would adopt a Preamble of this character, the intention of Parliament in the clause would be so clearly explained that the difficulty to which I have adverted would be obviated, and the sentence of death would not be passed by a court martial, unless they thought that the crime was one worthy of death; while the power of commutation of the sentence to corporal punishment would be left to the commanding officer. If the Government 459 think that the difficulties in the way of such a course are insuperable, and if they are resolved to retain the punishment of flogging for the numerous offences that are now comprehended in the Schedule to be proposed by the right hon. and gallant Gentleman the Secretary of State for War, and that no other limitation than the judgment and opinion of courts martial and the commanding officers can be adopted, then I am of opinion that, under the circumstances I have endeavoured to describe, the further retention of this punishment is impossible, and, it being impossible, the sooner it is altogether abolished the better. I need not detain the Committee by pointing to the injury which is done to the discipline of the Army by protracted discussions; I need not point out the injury done to recruiting, especially among the better class of men, unless some satisfactory arrangement is arrived at and continued from year to year. I have only now to say that if the Government do not see their way to adopt some such Amendment as I have suggested—an Amendment which, in my opinion, would meet with a good deal of support on both sides of the House—I shall have no alternative than to give effect to my opinion by my vote, either in Committee or on the Report of the Bill, or whenever an opportunity arises. I need hardly add that, whatever may be the decision of the Committee, after full and thorough consideration, I, at all events, shall be prepared to abide by it. I have no intention of being a party to any proceeding the object of which is simply to delay the progress of the Bill; and I do not promise to lend my assistance to any attempt to get rid by a side issue of what may be proved to be the deliberate decision of the Committee itself on the main question. I have no doubt that the hon. Member for Meath (Mr. Parnell) will claim, as an additional proof of the success of the system which he explained last night, the announcement I have just made on the part of myself and Friends. I should be extremely unwilling to deprive the hon. Member of any credit justly due to him; but I must say that, for the reasons I have endeavoured to explain, the greater part of the responsibility of the course I and my Friends think it necessary to take on this occasion must rest upon the shoulders of the Government themselves, owing to 460 the policy they have thought proper to pursue, rather than upon the shoulders of the hon. Member for Meath. I am willing to admit, to the very fullest extent, the responsibility which rests on the Opposition—a responsibility only second to that which rests on the Government themselves—to support, to the utmost extent, the military authorities in everything that may be necessary for the maintenance of the discipline of the Army. But when, as I think, it is proved, by the course the Government have taken, that they have no clear conviction themselves as to the indispensable necessity of the retention of flogging, I do not see that any obligation rests on the Opposition to support them in a course which appears to me to have been dictated to them, not entirely on their own responsibility and judgment, but by the opinions of a certain section of their own supporters. I must apologize for detaining the Committee at this length; but I thought that time would be saved by my stating, at the earliest possible moment, the opinion which I had formed and which I had hoped to be able to announce to the House more than a week ago.
§ COLONEL STANLEYI think that no one, however captious he may be, can complain that the noble Lord has occupied the Committee a moment too long in stating, so frankly as he has done, the views which he holds on this important question. The noble Lord really went to the root of the whole matter in saying that he felt, with other Members of the Committee, that in a matter of this kind the paramount consideration was that of maintaining the discipline of the Army. Following up that statement, he asked whether, in the opinion of the Government, it was considered indispensable, for the purpose of discipline, that corporal punishment should be continued? To that I have to answer that we have carefully considered the subject, and we find ourselves compelled to adhere to the maintenance of corporal punishment in the shape in which it now stands in the Bill; that that decision has been arrived at after great consideration; and that the decision, so far as I and other Members of the Government are concerned, is one from which we cannot depart. Now, the noble Lord has said that much time might have been saved if the Go- 461 vernment had taken up a more definite line on this matter. No doubt, in the conduct of this great Bill, a heavy responsibility rested upon those who had to do with it; but, at the same time, we have, in the alterations we have made, so far as relates to the actual matter now under discussion—alterations which the noble Lord chooses to call concessions—endeavoured to meet all objections which might be more or less fairly raised, and to show ourselves, as far as possible, willing to accept that which might appear to be the general feeling of both sides of the House. The noble Lord has referred to the recital of certain crimes in the Schedule. I do not wish to quarrel about the terms; but the object I had in assenting to provide such a Schedule was very much to assist the Committee, by showing, as clearly as possible in the Bill, for what crimes corporal punishment should be inflicted. With regard to the amount of punishment—from 50 lashes to 25—that is a matter which has been so recently before the Committee, that it would not be very convenient that I should re-introduce it. Now, we come to the point upon which the noble Lord attaches considerable importance—namely, the statement which I made some 10 days ago. That statement the noble Lord quotes correctly—namely, that in respect to corporal punishment I had been considering the Schedule, and I hoped on the following Monday—that was, yesterday week—to make a statement to the House which I hoped would be satisfactory. Unfortunately, however, the noble Lord hardly did me justice in saying that I had carefully guarded myself, both at that time and afterwards, from any interpretation which persons, in whatever good faith, might choose, looking at the matter from their own point of view, to put upon my words. Then comment was made on the statement of my right hon. Friend the Chancellor of the Exchequer, that the Government were considering the question as a whole. I am perfectly prepared to substantiate and adopt the statement of my right hon. Friend. In point of fact, we agreed to place certain crimes in the Schedule; and when we came to select the crimes which appeared the most convenient to place in the Schedule, we considered that the sound principle to go upon was to point out 462 certain crimes which, in military opinion, and as the result of long experience, have been deemed of so serious a character as to be deserving of the punishment of death, but to which corporal punishment might be attached as an alternative. Now, what is there inconsistent in that? To put aside the question of humanity, I may say that all along our contention has been that discipline must be maintained on active service, with the Forces which we have, by means, in some cases, of sharp and summary punishment. In that respect I maintain, without fear of contradiction, that, in the course we have adopted, we are only following out what has hitherto been the custom in the Service; and, moreover, that the custom of the Service has admitted, in times past, of corporal punishment becoming a substitute for the punishment of death which obtains for like offences in foreign Armies. Then, with respect to that point, surely there is nothing in the slightest degree inconsistent in our having said that we should consider the question as a whole; and in saying that, resting ourselves on principle, there were certain crimes to which the penalty of death pertained, but as to some of which—those which were not of the gravest nature—corporal punishment might well be substituted for that of death. Then I come to the question, who are responsible for the retention of this punishment? It may be said—opinions may be expressed here and there—opinions of individual persons—that the Government are responsible for that which has occurred. Her Majesty's Government are responsible for that which they have proposed, and it is upon the authority of the Government that the Schedule has been laid upon the Table. I do not wish to take up the time of the Committee further than upon the general question; and after what I have said at length on former occasions, I should be unnecessarily taking up the time of the Committee if I were now to express myself more fully on the subject. Coming, however, to the suggestion which was thrown out by the noble Lord as regarded the clause placed on the Paper by the hon. and learned Member for Stockport (Mr. Hopwood), which was to this effect—that corporal punishment should only be inflicted as a commutation of the death 463 penalty—I am bound to say that the noble Lord seemed to speak under a sense of the difficulty which would occur in many cases if these words were inserted in an Act of Parliament. In the first place, there is the obvious objection that they might occasion the passing of a sentence of death in many cases in which the officers composing the court would think and hope the sentence would not be carried out, and thus you would be placing an enormous responsibility upon the officer called upon to commute the punishment. I can easily understand that circumstances might arise in which the court, intending the prisoner to be flogged for some serious dereliction of military duty, would sentence the prisoner to death, but in which the confirming officer might conscientiously feel himself precluded from commuting the punishment. I do not hesitate to say that there are circumstances present to my mind which might cause—which certainly would cause—an increase in death sentences; in all probability, there would be an actual increase in the number of cases in which the penalty of death would be inflicted. That, I think, is the answer I am bound to give to the noble Lord with reference to the clause which originally stood in the name of the hon. and learned Member for Stockport. As regards another suggestion—the addition of a Preamble to recite that the punishment should be considered as a severe one, and only substituted in place of the death penalty there—after carefully considering the suggestion—as I would any suggestion coming from the noble Lord—I confess I find considerable objection; and, on the whole, my disposition at the moment is not in favour of its acceptance. In the first place, the cases where actual corporal punishment can be inflicted are distinctly specified in the Schedule, and not in the body of the clause; and I can find no precedent for a Preamble to a Schedule, though I am far from saying occasion might not arise for the creation of a precedent.
THE MARQUESS OF HARTINGTONexplained that the Preamble he suggested would be to the clause proposed by the hon. and learned Member for Stockport.
§ COLONEL STANLEYOh, quite so. But, after all, suppose you inserted that Preamble, what practical object would 464 you gain? I hope I shall not be understood as saying it offensively; but it would be only a salve to the consciences of those who would see the necessity of retaining the punishment, and yet would wish to record their objections to it. What object would be gained? Would it be a direction to the Court? To what degree could it possibly affect the circumstances or consideration of any crime which is the subject-matter of these clauses? I have only to say we have once more carefully considered the matter; and we think that the commutation of the punishment to corporal punishment for those crimes for which death can now be inflicted is distinctly a principle in accordance with the views Members on both sides of the House have expressed—namely, that the retention of this punishment is, on the whole, humane in its operation. I have considered the matter in that light. I have considered how far I could go in the direction of the general feeling against the infliction of the punishment; I have considered the circumstances in which the Forces would find themselves from time to time engaged; and I have obtained expression of opinion from those most conversant with the conditions of active service; and I have felt bound to place this Schedule on the Table, containing, as it does, a final record of the opinion of Her Majesty's Government upon the matter: and I am bound to state to the Committee that, as far as in us lies, to the conditions of that Schedule we must adhere.
§ COLONEL MUREsaid, he had not had the advantage of hearing the speech of the noble Lord; but he understood he had proposed the addition of a Preamble to the Amendment of the hon. and learned Member for Stockport (Mr. Hopwood). The noble Lord had spoken of the concessions made by the Government, and, no doubt, they had been many; but long experience in the same country where the campaign was now going on had shown him quite clearly that the acceptation of the limitations of flogging to those crimes mentioned in the Schedule would have the effect of reducing the cases to which the punishment of flogging might be applied so rare and exceptional as to make the flogging clause almost nugatory. If hon. Members had studied the Schedules they would see that the greatest number of 465 crimes there mentioned were crimes that could not possibly arise in South Africa, or were not likely to take place among the troops in Zululand. There were one or two cases under the Schedule where flogging might take the place of the death penalty—for instance, a sentry being asleep or drunk at his post, or leaving his post without being regularly relieved; but these were hardly cases in which summary punishment was specially necessary. As a general rule, the punishment was necessary soon after the troops were landed in a foreign country, more especially a savage country like South Africa. When the regiments were landed from shipboard there was usually some laxity of discipline, and more particularly in hot countries, where marching was very fatiguing and temptations to drinking were almost irresistible; but he was bound to say that if the Bill passed with its present limitations, and if the war was going on at the time when the Bill passed, then, practically speaking, flogging would be done away with in South Africa. Therefore, he asked, would the Government not find themselves in rather a strange position, after having expressed their view that it was necessary, for the discipline of the Army, to maintain the punishment, if further experience showed that they had, practically, abolished flogging even in the field, and under the most pressing emergency? But there was another consideration very strong to his mind, and which he feared must affect the discipline of the Army. We did not enlist a better class of recruits; but those we did enlist had better education than was formerly the case, and these very discussions must have a very bad effect upon the discipline of our troops in Zululand. There was good authority for saying that at least 200 men had been flogged during the campaign. All these discussions the men would read carefully in the newspapers arriving in the Colony, and the debate upon flogging in the House would be the subject of discussion among the men. Owing to the short-service system there was not now the same strict discipline in the Army that there used to be. Our young recruits were no longer mixed with old soldiers confirmed in soldier like habits, who used to laugh and sneer at discussions about flogging, but were filled with young men and young non- 466 commissioned officers, who were a great deal better educated than their predecessors, and who made the debates upon flogging a constant source of discussion. Every man in Zululand, who had been tried and flogged, knew that a very considerable section of the House of Commons, and perhaps of the public, were disputing the right of officers to punish the rank and file in a certain way, and every soldier who was flogged was looked upon by his associates as more or less of a martyr. He had remarked, in the course of his experience, that officers hated this practice of flogging; and he was bound to say, as a general rule, that those officers who had witnessed the punishment hated it the most; and that those officers who had never been through a campaign, never seen flogging—amateurs, as he might call them—were the sternest disciplinarians, and most anxious to retain flogging in the Army. Experience showed that when a case of this sort came before the House of Commons, and there became, in some sort, a Party question, and from a Party question became a popular question, then they might be certain its knell had sounded. He believed the days of flogging were numbered, and that they ought, free from all recriminations among themselves, to look fairly at the question, and see if offences could not be met with other means of summary punishment. He should like very much to know—with all the facts in view, with these discussions day by day, and the probability of this being made a Party question at the next Election ["Oh, oh!"]—he wished to be understood as deprecating any agitation on the subject out-of-doors—he deprecated the use of this as a Party cry—and if he had anything to do with a Party contest he should allow no words to escape his lips calculated to influence Party feeling—he would like to know whether the military authorities had been consulted as to the effect of the abolition of flogging in South Africa; whether, on the whole, they did not prefer to face any difficulty that might accrue to discipline in the field, to the certain prejudice to discipline which would arise from punishment in the Army being made—as it would be made—a Party question? He would also like to ask the Secretary of State for War whether 467 there was not a time when, there was an inclination on the part of Her Majesty's Government to give up flogging altogether? But that their decision not to yield to this inclination was due to the determined attitude of some of their supporters, who had "put their foot down,"not in the interests of the Army—not entirely in the interests of discipline—but because the exigencies of Party required it. Having had some experience in this matter he could foresee—and was quite ready to admit—the great difficulties that would arise in the field if flogging were done away with. He knew perfectly well the difficulty of a commander brought face to face with this position in a savage country like Zululand, with only one form of summary punishment to resort to—the dreadful punishment of death. Over and over again it had been reiterated that prisons could be carried about with the Army. At the same time, it must be admitted that in civilized countries, like France and Germany, this difficulty was not so great; but in a country like Zululand, where they could not leave men behind on the line of march, where they must carry all their people with them, he admitted that great difficulty would arise from the restriction to one form of punishment; but, still, he preferred that our commanders should face the difficulty, rather than that discipline generally should be undermined by a popular agitation. Over and over again he had pointed out to the Secretary of State for War the great hardship it was to the good men in the Army that so large a proportion of men of bad character were admitted into the ranks. Every year as many as 2,000 men of admittedly bad character were passed into the Army. Not long ago the following case came under his observation:—He was present at one of our recruiting depots when a young man who wished to enlist presented himself; the recruiting officer noticed how very short his hair was, and asked the reason. "Oh, Sir,"was the reply, "I have just come out of prison."Well, having fulfilled the requirements as to health and size, that man was passed into the ranks without further inquiry. That was the way recruiting was conducted, and 2,000 of such men were admitted into the Army every year. The Committee must understand that when a soldier was spoken of as a 468 bad character, the term meant so utterly bad and disgraceful a fellow that it was almost impossible to train him, and so loathsome that he ought not to associate with others. And yet 2,000 of these were admitted into the British Army year by year; they went from regiment to regiment, contaminating their comrades; and it was due to the presence of these bad characters that it was difficult to maintain discipline in the field, and from this came the necessity for flogging. What would happen if flogging were done away with? There was no doubt in his mind that the consequence would be that during a campaign the people of this country would be horrified and distressed by hearing, from time to time, of men being shot as a punishment. No officer would countenance such a punishment, except under circumstances of dire necessity; but, whenever the news came of a young soldier being shot, a thrill of horror would run through every homestead in the country. As a result of this, people would begin to inquire what sort of men it was they enlisted into the Service; and finding there were so many of a bad character, there would follow the determination on the part of the people that facilities should be offered for obtaining a better class of men in the Army, and that the scandal of the system of enlisting the worst classes should cease. These were the views he wished to express; and, holding them, he had no hesitation in supporting the noble Lord.
§ COLONEL NORTHexpressed his great astonishment at the speech of the hon. and gallant Member who had just sat down. He did not know whether it was the pressure of constituents, or the pressure of Party, that had been brought to bear on the hon. and gallant Member; but this he did know—that if there was a Member of the House with whom, more than another, he had spoken on the subject of flogging, it was the hon. and gallant Gentleman. He (Colonel North) could only say that a short time ago the hon. and gallant Member's opinion was that it was utterly impossible to maintain discipline in an Army in the field unless officers had the power to inflict corporal punishment. The hon. and gallant Gentleman had argued against himself. He had confined himself to the Zulu campaign, and he had shown it was impossible to 469 take everybody about with the Army on the march. Then it followed that if they did not flog an offender he must be shot, and left behind. Another point was this—a man might commit some very grievous offence, but yet not such as would merit death. What, then, was to be done with him? The hon. and gallant Gentleman talked a good deal about the blackguards in the Army; and for a long time it had been the endeavour of all to improve the condition of the Army, and get into it men of a respectable class. But how was this to be done? A respectable man might have on either side of him soldiers of very bad character. They had no old soldiers and non-commissioned officers, and these last were the backbone of the Army; and those and the old soldiers maintained the esprit de corps. But, deprived of these, and deprived of the only means of keeping the blackguards in order, how was it possible for a commander to preserve discipline? He could only say he was lost in astonishment that the hon. and gallant Gentleman, with his experience, did not see the necessity of this.
§ MR. WALTERhoped the Committee would excuse him if he, as a civilian, said a few words on the subject now under consideration. He was one of those who hitherto had supported the punishment of flogging, though he was glad to find it had been limited in amount, so that, though still severe, it was comparatively small to what it was. The question was now presented to the country in a totally new aspect, and in an aspect in which it had never been presented to the country before—not as being in itself the best and most appropriate punishment which could be devised for any particular offence, but simply as a mitigation of a severer punishment—a substitution for the punishment of death. That circumstance, in itself, opened a new view of the question, and was worthy of the most serious discussion. He felt himself hardly competent to enter into it without much further consideration; but it presented an entirely new aspect of the punishment of flogging, and raised the question whether, supposing that punishment to be only a substitution or commutation for death, it was, in fact, the only possible substitute which could be adopted for that extreme penalty? 470 This was not, however, exactly the point of view in which it most forcibly struck him at this moment. When they discussed this question among themselves, they were struck at once by the difference which existed between their Army and the great Armies on the Continent. They could not help being struck by the fact that, somehow or other, the penalty of flogging was known only in the British Army. It was unknown in the Army of France, which had achieved such wonderful military feats, and it was also unknown to the still greater Army of Germany, which had lately performed the greatest campaign which the world ever saw. They were told that the punishment of flogging must be retained because the materials of their Army were of a different character from the materials of the Armies of France and Germany. He did not wish to use an offensive or a disparaging expression in remarking that their Army was not recruited from a very high class of the population. Surely this question ought to present itself to them when they were taking this fact into account. They professed themselves unable to get on without this formidable punishment; but ought not this to suggest to them the imperative necessity of looking the greater question in the face, and of seeing whether the British nation could not place its Army on such a footing as would enable it to dispense with the punishment of flogging? For his own part, he believed that it could. At the present moment, whether from the plans of the late Government, or those who had carried those plans into effect, the Army was in a most miserable condition. There were two ways by which a great Army might be recruited. There was the mode in which foreign Armies were created—namely, by conscription. No one could suppose that in an Army thus created the punishment of flogging could exist for a week. Then there was another way, which, at one time, he confessed he hoped might have been adopted. It had always been his favourite scheme in opposition to that which was adopted by the late Government—namely, having a corps d'élite of 40,000 or 50,000 men, equal in character and in stature to the Metropolitan Police or to the army of railway servants. Such a corps would, man for man, be superior to any equal number of men they might have to encounter, 471 and the Army might be recruited from the Militia, which would be made a really powerful Force. His belief was that in such a corps they would not have flogging any more than there was flogging in the Metropolitan Police. But with their miserable system of recruiting men—or, rather, boys of 17 years of age—whom nobody else would have, they were obliged to persist in a deplorable system of punishment repudiated by every other Army in the world. This was the view he took; and he hoped this discussion—without regard to quality, by far the gravest that had been raised in connection with the Mutiny Bill—would have the effect of turning the attention of the Government to the subject of the character of the men in the Army.
§ MR. A. GATHORNE-HARDYventured to think the hon. Gentleman (Mr. Walter) had begun at the wrong end. The hon. Gentleman had suggested that, by a better system, they might secure a better stamp of recruits, and. possibly he was quite correct; but now the question was how to deal with the material they had got? It had been admitted, by the hon. and gallant Member for Renfrewshire (Colonel Mure), and by the hon. Member for Berkshire and others, that soldiers at present were not of the stamp it was hoped might some time be obtained; but, then, what was to be done to preserve discipline among the men they had? The hon. and gallant Gentleman the Member for Renfrewshire, having been called upon by the noble Lord (the Marquess of Hartington) to come forward and curse his enemies, had, like a second Balaam, ended by blessing them. With the exception of the beginning and the end, the speech of the hon. and gallant Member was a powerful argument in favour of retaining the punishment of flogging in the Army. He was obliged to admit that the abolition of the punishment would leave only the death penalty; and he decided that, under present circumstances, the more severe penalty would have to be inflicted in some, if not in many, cases. This was the great argument which, in listening to the speech of the hon. and learned Member for Oxford (Sir William Harcourt), most powerfully convinced him of the necessity of retaining the punishment. The hon. and gallant Gentleman had also alluded to the bad effect on the discipline of the men these 472 discussions would have. With this remark, he (Mr. A. Gathorne Hardy) concurred; but it suggested itself to his mind why, if hon. Gentlemen thought that, did they carry on the discussions with such length and such persistency? With reference to the change of front on the part of the noble Lord and hon. Gentlemen opposite, he might remark that they had declared their intention of supporting the abolition of the penalty, giving as their reasons the concessions already made by the Government. The hon. and learned Member for Oxford—who, no doubt, was numbered among the supporters of the noble Lord—was largely responsible, with others on the same side, for the concessions upon which they now based their change of front. The reduction of the number of lashes to 25 had the support of the hon. and learned Member, the addition of the Schedules also; and it was on these concessions that the change of front was largely based. [Sir WILLIAM HARCOURT dissented.] The hon. and learned Gentleman shook his head; but it was impossible to find upon what else the change was based. The argument used by the hon. and learned Member for Oxford had never been answered. If this penalty was abolished, nothing was left but the penalty of death; and that was an argument in favour of the humanity of those supporting the Government. They were reduced to these two alternatives—the lash and the bullet. Members on the other side said, adopt the bullet; on the other hand the Government said, use the lash. Surely the latter were the real friends of humanity.
§ MR. MUNDELLA,as to the claim put forward by hon. Members opposite to be considered the friends of humanity, would like to ask the Secretary of State for War if he had made any inquiry into the working of the Code in the German Army, and if he was prepared to say how that Code worked; and then he would ask why it was that English soldiers were assumed to be so different to those of Continental Armies? He was assured, on the highest military authority, that in the Austro-German War not a single German soldier was shot as a punishment. It was said there was no alternative between the lash and the bullet; but here was an Army in which the lash was unknown, and they had not required to use the bullet. 473 What was the reason for this? Again, in the Franco-German War, only one or two out of the whole German Army suffered the death punishment—out of 600,000 or 800,000 men in the field, with every temptation to marauding and crime. But the answer was, there was a different class of men in a conscription Army; and the noble Lord opposite (Lord Elcho) had accused those who argued for the abolition of flogging, of casting their sympathies in with the ruffians in the Army; but surely this ruffianism must exist in a conscripted Army, and there was a necessity for keeping discipline. But were they likely to have more or less ruffianism while this system of flogging was in existence? He had seen men coming from the mine and the loom to stand side by side with bankers' clerks and men of good education, and surely that was a case in which the argument of his hon. Friend would have applied. Why, then, had they heard nothing of this system in the German Army? Our authorities had copied, in the most slavish manner, the German system. They had copied the German Army, in fact, in everything but its discipline. Did not the right hon. and gallant Gentleman know that the German Military Code was the most humane in Europe. But there was something more to be said. His hon. and gallant Friend the Member for Renfrewshire (Colonel Mure) said there was only that kind of punishment that could be resorted to for particular offences. Was there such a poverty of invention in England, that but one sort of punishment could be resorted to? Again, he would ask the Committee whether, if this same punishment were inflicted on any animal in the creation, under any circumstances whatever, whether the man who inflicted it would not make himself amenable to our criminal law? He believed the hon. Member for Berkshire (Mr. Walter) had originated a very useful discussion by the line he had taken—that they would have to look more to the character of the men who enlisted in the Army. If the military authorities would pay a little more regard to character, and trust a little less in the lash, we should have not only a much better class of soldiers, but a much better Army. Instead of retaining flogging only in time of war, it seemed to him that if it were to be retained at all, it must be retained in a time 474 of peace; for, according to the argument of the gallant Officers opposite, it was the only mode of bringing men into proper discipline. He, for one, should now vote for the abolition of the cat under all circumstances, because he believed they could devise other punishments much more effective, and much more likely to reform the Service; while, at the same time, they would get a better Army, and raise the character of the men of England.
§ SIR WALTER B. BARTTELOTsaid, it was high time to come to a decision. He quite agreed with those who thought it was unfortunate this discussion should be so protracted. Even hon. Gentlemen opposite, who had at heart the abolition of this punishment, must think it due to the soldier himself that this discussion should cease; that they should have an absolute decision upon the merits of the case; and that they should not, on every occasion when it could be brought before the Committee, raise again and again and afresh this question of flogging. He had been very much struck with the debate to-day. He was not going to accuse the noble Lord the Leader of the Opposition, or those who acted with him, of doing what they did not believe to be absolutely right; but the noble Lord, in his speech, had declared that there were certain cases in which flogging ought to be used. The noble Lord proposed that there should be an amendment in the Preamble, and that they should define absolutely and distinctly those cases in which flogging ought to be employed. He knew that many had changed their minds; but, even at the eleventh hour, the noble Lord still thought there were reasons why a General of an Army in the field should have that power. Putting aside all other feelings, what the Committee had to consider was, what would be for the best interests of an Army in the field. When he heard the hon. Member for Sheffield (Mr. Mundella) say that in no other Army were there punishments like those in the English Army, his answer was that the English Army was far more just and equitable and humane to its soldiers than any other Army the hon. Gentleman could name. He knew the Code of the German Army, and what was done in it; and he defied the hon. Gentleman to get up and say that what individual officers did to their men in the German 475 Army—and it was the same in the French Army—would not be considered in this country discreditable and disgraceful, and would not for one moment be allowed? The hon. Member shook his head; but it was an absolute fact. No later than last week he saw that an officer in a foreign Army was tried and condemned to five years' imprisonment in a fortress for violently assaulting and brutally ill-treating soldiers under his command on 66 different occasions. How? With his fist and with his sword. That was certainly a punishment well deserved; and he would ask, in justice and fairness, whether it was not a fact that there was not an English officer who did not dislike, and would be the last to punish his men, and who did not always avoid it, unless it was absolutely impossible to get on without it? A statement was made the other day about the 1st Dragoon Guards, when they embarked for Zululand. It was said they had a number of men flogged. He had made inquiry about that at Aldershot, and he ascertained that three men were flogged for the grossest insubordination. They were men who had volunteered from another regiment and had been transferred to the regiment, and they were flogged for forcing a sentry, and endeavouring to strike their officer who was on duty. What could they do with men like that, cooped up on board ship, and having their arms with them, unless there were some such means as flogging as a punishment for such misconduct? The suggestion that men should be tried by court martial and imprisoned would, in case of war, throw all the work upon their comrades, and would, besides, be just the thing the men would like. Every general officer he had seen—and they were bound to pay attention to their opinion—said that it was imperatively necessary in an enemy's country that they should have this punishment. The Committee had fenced flogging round in every way; and was it not more merciful to condemn a man to this punishment than, as in foreign countries, to five years' hard labour in chains? They might depend upon it, men would rather be flogged than go to prison for two years. He only wished the punishment could be done away with. But, now that the noble Lord had raised the discussion, he hoped he would agree 476 that it was time to come to an absolute decision. He hoped hon. Members opposite, who said they did not want to put off the decision, would be bound by the majority, as those on that (the Ministerial) side would be bound, if the majority were against them.
§ MR. MUNDELLAsaid, the hon. and gallant Gentleman who had just sat down had challenged him to say whether the officers of the French and German Armies did not treat their men in a way which, in England, would be considered disgraceful, and would not be tolerated? He would only reply that such conduct was clearly contrary to the Codes of both the French and the German Armies, and was also punishable under the Military Code. That was one of the questions he inquired into only the day before; and other hon. Members, who were acquainted with the working of the Code, could corroborate him.
§ MR. J. HOLMSsaid, the discussion had opened up important considerations in relation to the whole condition of their Army. ["Oh!"] It was asked whether they were to change their system, or to deal with the material in their hands? They had now a Departmental Committee to investigate the condition of the Army, and surely, therefore, this was a proper time for them to consider the laws which governed it. He could not agree that, generally, German officers treated their men badly; and the hon. and gallant Gentleman (Sir Walter B. Barttelot) had defeated his own argument by quoting an instance where a German officer was sentenced to severe punishment for doing so. He had read, with the greatest care, the whole of the German Code, and he had visited Germany more than once; and he would not hesitate to say that if the cat-o'-nine-tails were adopted there, there would very quickly be a revolution in the country. It was said we must have the cat, because there were so many bad men in the Army. Well, he had always maintained that the way to get good men into the Army was to do away with the cat. Until it was abolished, it was certain that good men would not join the Army. The House had reason to complain that the Government had not had the question investigated by the Committee upstairs, for it could have been better considered there than it could be discussed here. The punish- 477 ment was doomed, and the Government could only do harm by standing out. He deprecated this being made the subject of popular agitation.
§ MR. BAILLIE COCHRANEstated, that in Germany a different class of men served in the ranks to that from which the English Army was mainly recruited. He supposed the Opposition did not mean to claim a monopoly of humanity; and he asked them whether they would not give credit to the other side of the House for being anxious to do away with flogging, if that were possible? It would be well to look at the matter from an historical point of view, and to consider who had inflicted the severest punishments when they had the power. There never was more flogging than there was during the Mutiny at the Nore. He would remind the Committee that the French soldiers were different from our men, because many of those who had begun as private soldiers had risen to be Marshals. But, in England, we had an entirely different class of men to deal with; and though he would not call them blackguards, he did think that our soldiers were a class not to be controlled except by severe punishments. The Governor of Newgate had told him that the terror of flogging was so great that, if it superseded hanging, it would, he believed, do more than that punishment to deter people from committing murder. If flogging were prohibited, then, certainly, the authorities would be obliged sometimes to take away life, which otherwise could be spared for the service of the country.
MR. OSBORNE MORGANobserved, that those who charged him and his hon. Friends with a change of front in this matter forgot the educating influence of the debate. No one who had listened to the speech of the noble Lord (the Marquess of Hartington), and the debate which followed, would doubt that in the English Army the lash was, practically, dead. It had been dying by inches for the last month. It had been abolished in many cases, in which it was said that it was necessary in order to make discipline effective; and, as they had cut off so many inches from the "cats "tail, had they not better now get rid of it altogether? They had been told that flogging1 was necessary in order that men might not be shot; but a large proportion of the offences in the Sche- 478 dule were so heinous, that death was a proper punishment for them. He would, for instance, shoot a man who went over to the enemy, or who gave information to them; while the rest of the offences were so trivial that they never ought to be punished with death. The hon. Member for the Isle of Wight (Mr. Baillie Cochrane) had asked him not to claim a monopoly of humanity. But if they did not claim a monopoly of humanity, the other side, also, should not claim a monopoly of sincerity. Why should this be made a Party question? There was nothing Party about it. He only regretted that Mr. Henley was not with them, to give them the benefit of his strong common sense on this question. How did other Armies maintain their discipline? No one would say that the German commanding officers were not the supreme authority in military matters; yet they had no flogging, nor anything of the kind.
"Oh! would the gods the giftie gie us,To see ourselves as others see us.He wished hon. Members could talk to French, German, and Italian officers on the subject, and not maintain the spirit of insular patriotism in which they had addressed the House. He could not understand why they should act in the spirit of the song—"He resisted all temptations to belong to other nations," and remained an Englishman. Hon. Gentlemen opposite, like the ostrich, insisted upon burying their heads in the sand, and not caring how much of the rest of their persons they exposed to view. They were told that the German Army was composed of respectable men. Well, he should have thought, as ours was a popular Army, that that would have been the strongest argument in favour of doing away with the lash. He need not refer further, however, to Continental Armies, for he had recently seen a gentleman who held a high position in the Army of the United States during the last war. That Army was recruited by voluntary enlistment, like ours, as everybody knew; yet when he asked if the lash was in use there that gentleman seemed astonished, and replied at once that public opinion would not tolerate it for a moment. He added—what every foreigner with whom he had talked on this subject said also—that he could not make out how it was that pub- 479 lic opinion tolerated it here. He repRated—what he had been told over and over again during these debates—that our soldiers were such a lot of blackguards that they could not otherwise be controlled. The reply was—"If you come to that, I think we could show you some blackguards in our Army as great as yours; but, then, if we flogged them, we should have far greater blackguards.He would also call a witness who was entirely unprejudiced—the editor of The Pall Mall Gazette. That paper had been almost the apostle of the lash, and seemed to think that the world could only be regenerated by corporal punishment. Yet, in that paper, a letter had appeared that morning from a recruiting officer, stating that the lash did have one bad effect—it deterred respectable men from joining the Army. He did not wish this to be made a Party question, and he hoped it would never be made one; and if the right hon. and gallant Gentleman would give up the punishment, he would cheerfully make him a present of the personal popularity which would certainly result from his having the courage to come forward and remove this stigma from the English Army and the English nation.
§ SIR GEORGE BOWYERsaid, in justice to himself and duty to his constituents, be must state the reasons for his vote on this subject. He bated the punishment of flogging as much, as hon. Gentlemen opposite. The question was, whether it was unavoidable? This punishment could only be justified if it could be shown that it was absolutely necessary. They were told, by the highest military authorities in this country, that it was necessary, and it was not for him, as a civilian, to contradict them. These were experts, to whose opinion he must pay the greatest deference; and he, for one, must accept it. When he was asked why flogging was not inflicted on the Continent, he could only reply that he should like to know a little more on the subject; but he believed that Continental officers did make use of their canes, and the flat of their swords, pretty freely. Again, he was quite certain that shooting was more general in foreign countries than in England. Men, who assaulted a sentinel or an officer, even in time of peace, would be shot. ["No, no!"] He asserted that unhesitatingly. And then 480 he had seen a French soldier placed in the middle of a square of troops, stripped of his uniform, knocked down by a blow on the side of the head which almost rendered him insensible, and then walked round the square with a heavy weight attached to his leg, and off to prison. That was a very severe and degrading punishment. No doubt, flogging was degrading; but he thought there was one thing more degrading than flogging, and that was crime. For degrading crimes they must inflict degrading punishments. In France crimes were punished by the galley, which, in this country, would be punished by the lash. The criminals were dressed in a peculiar dress, with a number on it, and they had heavy chains on their legs. At night they slept in rooms, with other men like themselves, all fastened in rows to an iron rod, and were subject, in fact, to a species of slavery. Hon. Gentlemen, if they saw anything of that, and knew anything of that punishment, would certainly agree that it was quite as degrading as the lash. Most soldiers would rather receive a certain number of lashes and have done with it. Then, again, other Armies were conscription Armies, which resulted in great injury to commerce and trade, by taking the men away from their civil employments. It would be an evil day in this House when they adopted conscription, and he hoped no one would advocate it. The hon. Member for Berkshire (Mr. Walter) wanted an Army of picked men; but, if his views were carried out, they must incur an expense which would alarm the Chancellor of the Exchequer. He believed that flogging would only be inflicted in case of absolute necessity, and where the only alternative would be shooting; and, surely, it was better to flog than to take a man's life. It was quite clear that when men were on foreign service, or fighting in the field, the only possible alternatives were the lash or death. If anyone would convince him that the lash was unnecessary, he would vote for its total abolition; but he did think it was clear that it was absolutely necessary, as, otherwise, they might find themselves at the mercy of a few ruffians banded together.
MR. GLADSTONEI am very sensible of the great importance and the great difficulty of this question. At the same time, I am under the influence of 481 a very sincere desire to promote a reasonable expedition in our dealing with it. So far as the merits of the question are concerned, my own views have been so closely expressed by my noble Friend the Leader of the Opposition that I am very willing either to postpone it altogether, or simply to make such observations as have been suggested to me by the course of this debate. I observe that we are in an unfortunate predicament—that after lamenting the loss of a good deal of time upon the Bill, and after we have even charged upon certain Members a good deal of the responsibility for that loss, that we are ourselves pursuing a discussion of a subject of very great moment on the occasion of a Question from the Chair, the decision of which cannot advance us one step. I do think, therefore, that Her Majesty's Government may very fairly appeal to the Committee to bring the present discussion to a close. It has, undoubtedly, been of great use, inasmuch as it has clearly exhibited the views of my noble Friend and many others who have taken an interest in this question. It remains to be considered in what manner those different views which have been expressed are to be brought to an issue. What is quite plain is, that they cannot be brought to an issue on the Motion of my hon. Friend (Sir George Campbell). There are two methods which are open to us—we may proceed with the Amendments on the Paper, and then arrive at the Schedule; and then it would be possible for those who are prepared, with my noble Friend, to vote for the abolition of flogging, to give their negative votes on the Schedule as a whole, with the effect that flogging would be practically abolished. It would be abolished, however, in a manner informal and irregular; but there would still remain in the Bill a clause referring to the Schedule, and giving sanction to the principle of corporal punishment, and referring to the Schedule specifying the mode and the conditions of its infliction. I own, therefore, Sir, it appears to me that the more regular course would be, as the Committee has affirmed the principle of flogging in one of the clauses, that they should await a Report, in order to raise the question in a regular manner by some Amendment framed for that purpose, or, by a negative upon the clause, we might arrive at a perfectly 482 distinct issue, and we should then be able to proceed to-night with the Amendment in detail. I must also observe that the right hon. and gallant Gentleman the Secretary of State for War, when he discussed the suggestion that has been made by my noble Friend as to an indication in the Bill itself of the mind of Parliament with regard to the reduction of flogging to the alternative described as the lash or the bullet, although he did not give any encouragement to that suggestion, and said that the balance of his mind was at present against it, yet I did not understand him to use such positive language as to entirely preclude himself from considering whether he could adopt such a course. Whether he has closed his mind or not I do not know, of course; but I regard it as a point of importance with regard to the matter in issue. However that may be, it appears to me that time—which is always a precious commodity—has become, under present circumstances, far more valuable than ever; and I think we should very greatly save time, if we could bring to an issue the present discussion on the Amendment proposed by my hon. Friend behind me (Sir George Campbell), and then proceed in a regular manner upon the Report to a decision on the main question.
§ THE CHANCELLOR OF THE EXCHEQUERI most fully concur with what has fallen from my right hon. Friend. I must, however, point out that the discussion we have recently been going through was initiated by the noble Lord, and initiated deliberately with the consciousness that this particular clause, and this particular Amendment proposed by the hon. Member for Kirkcaldy (Sir George Campbell), was not a very convenient one on which to raise the question. The noble Lord, no doubt, had a reason for what he said, and thought it desirable he should take an early opportunity of declaring to the Committee the views which he and others whom he represents have now formed upon the general question. I do think it is, at all events, an advantage that we should at this time be furnished with that statement; though, of course, such observations as those he made necessarily led to a good deal of discussion on the general question. That discussion has ranged over several topics. I had intended to make some observations on 483 several things which had been said; but I do feel so strongly the justice of what has been said by my right hon. Friend the Member for Greenwich that I will abstain from making any comment upon what has been said for the sake of going on with the Bill, and discussing the various Amendments now before the Committee, in the expectation that we shall have an opportunity, later on, of regularly debating this question. I shall then be able to state both the grounds upon which we proceed, and the arguments by which we think our course may be justified. I hope other hon. Members will take it up, and that we shall now proceed with the question before the Committee.
§ MR. CHAMBERLAINsaid, this question had been very fully discussed in the course of the present debate, especially upon the very important statement made, almost at its commencement, by the noble Lord the Leader of the Opposition. He need scarcely say with how much pleasure and gratification he, and those who worked with him, had heard that statement. He believed that it must materially affect the course which he proposed to take in reference to the Bill in its present stage. That statement was very important; but not less important was the statement by the right hon. and gallant Gentleman the Secretary of State for War, in which he most fairly, but, at the same time, most emphatically, admitted that on the Government, and on the Government alone, must fall the responsibility of retaining the flogging clauses in the Bill. That had not been quite clear to him and his Friends before. Some of them thought—and it had, indeed, been said in the course of the debate—that the Government desired to remove this punishment from the Bill, but that they were overborne by certain high military authorities outside. He was of opinion that that statement was without any real foundation; and, at all events, he was glad to find that the Government were prepared to take the onus upon themselves, and on them, and on their supporters, must the responsibility and the odium of preserving this barbarous and disgraceful punishment rest. They themselves, by their action, had cut away the only grounds upon which the maintenance of the lash in the Army could be really and properly defended. Perhaps hon. Members oppose Chancellor of the Exchequer 484 site were not aware of the full extent of the changes that had been made in this Bill. It was all very well for the hon. and gallant Member for Oxfordshire (Colonel North) to get up and declare that the discipline of the Army absolutely depended on the retention of these flogging clauses. What was the illustration by which he proved that? The hon. and gallant Gentleman certainly did not give the Committee a very good opinion of the British Army, for he spoke of a good soldier finding on his right hand a tremendous ruffian, and on the other the refuse of all the gaols in the Kingdom. But what were the offences which the hon. and gallant Member anticipated the men were going to commit? If they were offences within the cognizance of the civil power they did not want to flog them for it; while, if they were committing trivial offences against military discipline, flogging could not be inflicted as a punishment after the recent alterations made in the Bill. Up to the present time flogging had been chiefly inflicted for trivial offences, for offences against discipline, and, above all, for drunkenness in presence of the enemy. For such offences, and especially for drunkenness, flogging could not any longer be inflicted in consequence of the Amendments the Government had accepted. Then, he declared that they could no longer say that flogging was necessary for the discipline of the Army. What did the military papers say on the subject? The United Service Gazette, a paper written by military men for military men, in the last number, published July 12, said—
"It would be wise for the Government now to yield to what is undoubtedly the genuine public opinion, and kill the cat for ever. There are many punishments which can he substituted for it on board ship and in quarters, and even in the field it is not an absolute necessity that the punishment of death should he the only alternative.That was the opinion of a paper which had been in favour of the punishment, but now thought it was no longer worth retaining. The writer went on—"Let the Government be wise, and take time by the forelock; let them boldly announce that the lash is done away with in the Army and the Navy. It is worth the trial.As a sentiment the experiment was worth trial, for this was virtually an appeal to the soldiers and sailors to uphold the 485 dignity of their order, and to maintain that discipline which had hitherto made them invincible. Such an appeal would not be made in vain. He might also quote similar opinions from The Army and Navy Gazette, written while these debates were proceeding; but there was enough to prove he had the support of high military authority. He now had to consider what course should be taken with reference to the Amendments standing in his name. All these Amendments were practically intended for the limitation of this already limited punishment; but it did seem to him illogical and inconsistent to propose limitations when, in a short time, they were going to discuss the propriety of abolishing the lash altogether; and, under these circumstances, he would withdraw his Amendments from the Paper in the present stage of the Bill, and would offer no further opposition in Committee, reserving his objections till they discussed the main question, when the whole Liberal Party would undoubtedly declare against the continued retention of this degrading punishment.
MR. MACARTNEYsaid, that when he was at the University of Bonn his rooms overlooked the drill ground, and he had seen the sergeants and officers in a Cavalry regiment use their canes very freely on the backs of their men. ["When? "] That was when he was a student there. [Mr. SULLIVAN: That was 80 years ago.] He believed it was in 1836. Again, in the Mediterranean—about the year 1846—he saw a sailor crucified—his arms and legs were stretched out and fastened in the rigging. The man was kept suspended there for a whole day, in the burning sun, without water; and he was told that the punishment was given for some breach of discipline. That was on board a French line of battle ship.
§ SIR GEORGE CAMPBELLsaid, the Amendment he had proposed had rather been lost sight of in the discussion initiated by the noble Lord. His enthusiasm for his Leader had been so much excited of late that he was now glad to follow not only when he thought him right, but even sometimes when he thought him wrong. As, however, he had previously committed himself to his Amendment and to an opinion adverse to the plan recommended by the noble Lord, he 486 was obliged to stand by it. If the Government would not accept it, then he might feel himself free to vote against the punishment of flogging altogether. He was very anxious to see the Army composed of respectable men; but then it must be remembered that they could only obtain these men by paying for them, and that the cost would be very heavy.
MR. SULLIVANsaid, the hon. Member for Tyrone (Mr. Macartney) had endeavoured to prejudice them by stories of what occurred when he was at school at Bonn; but they did not want to know what had happened between 60 and 70 years ago. He would remind the hon. Member, in the words of his noble Leader, Lord Beaconsfield, that a great many things had happened since then; and if he would inquire he would find there had been a great improvement in the German Army. As to the position this question now occupied before the House, he understood the suggestion had been made that his hon. Friends should withdraw all their Amendments from discussion in Committee, and have one set battle on the Report. That might be a very convenient course for the Government; but he should hesitate about accepting it. He noticed in the accounts of an engagement between a Peruvian iron-clad and a Chilian wooden vessel, the iron-clad wanted the wooden vessel to come out and fight a grand match and settle at once and for ever; but the wooden vessel did not see the plausibility of that proposal; so the minority could not be decoyed from their vantage ground in Committee by any such amiable invitation as had been addressed to them from across the floor. He (Mr. Sullivan) felt that he and his hon. Friends had an advantage in Committee which they would not have on Report. And it was by making use of that advantage that the admirable concessions of the Government had been gained. If they were only allowed to remain in Committee three or four days longer, he could not doubt that, from the kindly desire of Her Majesty's Government to do what was right for the efficiency of the Army, they would accomplish a full measure of reform by abolishing the degradation of the cat. He informed the Committee fairly that he was determined to take a Division upon every conceivable Amendment 487 which, he could raise in Committee, because he should have an advantage there which, he would not have on Report. He wanted that punishment should be visited on the offenders in crime irrespective of persons, and the result of the Division would show whether it was the crime or the class of the offender that was aimed at.
THE MARQUESS OF HARTINGTONSir, of course, the hon. and learned Member for Louth is perfectly entitled to take whatever course he thinks proper, and no one, I believe, would have the presumption to offer to him, or any hon. Members below the Gangway, advice as to the course which they should pursue. I cannot but think, however, that the arrangement suggested by my right hon. Friend the Member for Greenwich (Mr. Gladstone), and assented to by the right hon. Gentleman opposite, is the most convenient course that could be adopted—namely, that the decisive Division on this question should be postponed until Report. My hon. Friend the Member for Birmingham (Mr. Chamberlain) intimated that, as far as he was concerned, he did not propose to move the Amendment of which he had given Notice, and would, therefore, assist in passing the Bill through Committee this evening. I cannot help thinking it would be very convenient, if possible, that that arrangement should be carried out. Of course, it is desirable that we should, before discussing the Amendments in the way proposed, have some understanding as to when the Report would be taken. All I can do to assist in this matter is to say that we do not propose to take any part in the discussion upon these subordinate issues, but to wait until the House has an opportunity of deciding upon the main question.
§ MR. BIGGARsaid, before the Amendment of the hon. Member for Kirkcaldy was withdrawn, he might be permitted to offer a few remarks on what he believed to be the general position of affairs. The object being to secure the abolition of flogging, it appeared to him that the front Opposition Bench was not taking the most desirable course in order to secure that end. The position of the matter was this—there were a number of Amendments on the Paper, each one of which was directed, more or less, to the principle of flogging. They knew the Government would not agree to all 488 those Amendments; but it was quite possible they would agree to some of them, and the principle would in that way be more or less curtailed. The right hon. Gentleman the Member for Greenwich and the noble Lord the Member for the Radnor Boroughs had proposed that the right to place these Amendments before the House should be waived, and that hon. Members should wait until the Bill had reached its final stage, when the whole question was to be settled by a sham fight and a Party Division. The result of that would be that the noble Lord, who had voted in favour of flogging on several stages of the Bill, would gain the credit of having made a Motion for its abolition. In that case, the whole odium of its retention would rest upon the Government, and the Opposition would simply be fighting in favour of a foregone conclusion. He (Mr. Biggar) would certainly not recommend any such course. It was well known that the great body of electors in the large towns was against this punishment; and the Gentlemen on the front Opposition Benches, looking to this fact, cared not one straw for the interest of the Army, or of the soldier, but were simply fighting in the interest of Party. He would suggest to Her Majesty's Government that the best way to take the wind out of the sails of the noble Lord would be to propose, on Report, that the clause giving the power of flogging should be struck out of the Bill. He did not agree with the proposal that hon. Members should not move Amendments which they believed would go in the direction of lessening this punishment, neither did he approve the right hon. Gentleman and the noble Lord coming forward, at the eleventh hour, when the battle had been fought out to the bitter end, and trying to make some political capital out of it.
§ SIR ROBERT PEELcould not but think that Her Majesty's Government had been placed in a position of some embarrassment by the course which had been taken by the noble Lord the Leader of the Opposition. It would, he thought, have been better if the noble Lord had given Notice of his intended suggestion, in order that the Government and the Committee might have been fully prepared to deal with it. He was bound to say that after the concessions made by 489 the Government, he, for one, in common, with many others, were prepared to accept these concessions as final; and he would remind the hon. and learned Member for Louth (Mr. Sullivan) that when, on a former day, the Secretary of State for War had made his statement that he intended to confine the punishment of flogging to cases in which sentences of death could be awarded, he expressed his entire concurrence with the course which the Government had taken. He was sorry that this movement had been made now. It certainly had the appearance of a Party movement. It was all very well to disclaim such an intention on either side; but it was quite evident that this sudden change of front had been taken after the noble Lord and his Friends had seen which way the cat jumped. Those who had been fighting this Bill, clause by clause, were really entitled to the credit of the suggestion which had been made. He was bound, in candour, to admit, after the admission of the Secretary of State for War, wherein he distinctly told Parliament that, in his opinion, and in the opinion of the military authorities of the country, it was impossible to maintain the discipline of the Army unless the Schedule which had been submitted by the Government were adopted by the Committee—namely, that flogging should be resorted to in cases punishable by death—that he, for one, was prepared to bow to that decision. There was great force and weight in that decision. They had obtained great concessions; and he thought it would be unfair to the Committee that the question should now be made one of Party, for the purpose of gratifying a few right hon. Gentlemen who sat upon the front Opposition Bench, and who would now get to themselves all the credit for concessions which had been gained by the strenuous exertions of those who sat below the Gangway. After having heard the statement of the Secretary of State for War, that the discipline of the Army could not be maintained without recourse to flogging in cases punishable with death, he should feel very great reluctance to vote against the Government upon this question.
MR. O'CONNOR POWERsaid, the speech of the right hon. Gentleman (Sir Robert Peel) contained an unexpected vindication of the course of persistent 490 opposition to certain clauses of the Bill which had been followed by hon. Gentlemen below the Gangway on his side of the House. He certainly congratulated his hon. Friends upon the triumph they had achieved. But he was at a loss to understand whether the proposal which was made by the right hon. Gentleman the Member for Greenwich (Mr. Gladstone), and the noble Lord the Member for Radnor Boroughs (the Marquess of Hartington), had been made with the object of abolishing flogging in the Army, or for the purpose of re-uniting the Liberal Party. He sympathized with both those objects; but thought that the abolition of flogging in the Army was the more important of the two. He had no doubt that by some unaccountable arrangement the Liberal Party would be united whenever they had the opportunity of vindicating their principles on the hustings; but he did not see any such immediate necessity for that close union during the next four or five weeks' of Parliament as should preclude discussion upon Amendments on the Paper. Nevertheless, when a spirit of conciliation was shown in any quarter of the House, he thought it should be met in a similar spirit; and if there was now a spirit of conciliation abroad, he was quite prepared to go abroad and meet it. But he had not been able to understand what quid pro quo his hon. Friends were to receive from the Government for the withdrawal of their Amendments. Was it that Her Majesty's Government, supposing that the Amendments were withdrawn, were ready to take Report on Wednesday or Thursday next, at such an hour as would give hon. Members an opportunity of debating the question of flogging over again? He was not aware that the Government had made any such proposal; and if they abandoned the vantage ground which they now possessed in Committee, he wanted to know what equivalent the noble Lord the Leader of the Opposition or the Secretary of State for War was prepared to give them for that abandonment on their part? He hoped that it would not be forgotten that anything which had been achieved in the direction of reform had not been achieved by what were called great debates, nor by sham battles. His hon. Friend the Member for Cavan (Mr. Biggar) had described them when the 491 Front Benches, in all the panoply and pomp of war, crossed swords across the Table. He had always thought that that sort of thing—making a Parliamentary advertisement on one side for the defenders of the Constitution, and on the other for the Gentlemen who, for the moment, were vindicating the liberties of the people—was not the way to secure success. There was no result. If hon. Members wanted any result, they must be prepared to do the odious work of walking into the Lobbies in a miserable minority, perhaps over and over again, and thus making an impression on those charged with the Business of the country. How were they treated when they were engaged in that odious task? Nothing but denunciations had proceeded from some of the most prominent Members of the front Opposition Bench. He excepted from that indictment the hon. and learned Member for Oxford (Sir William Harcourt), who had assisted them upon some very important points in their proceedings, and to whom, probably, were due most of the reforms which Her Majesty's Government had accepted with reference to this Bill. In order to bring the matter to a harmonious conclusion, he would appeal to Her Majesty's Government to show what equivalent they were prepared to offer for the withdrawal of the Amendments.
§ THE CHANCELLOR OF THE EXCHEQUERSir, I did not understand the suggestion of the right hon. Gentleman the Member for Greenwich (Mr. Gladstone) to be anything in the nature of a proposal for any bargain or arrangement for giving a quid pro quo. On the other hand, the Government feel that it would be their duty, under the circumstances of the case, to place the Report of the Bill as a first Order of the Day on Thursday next, if we can get it through Committee to-night. I understand that if the debate in Committee is concluded by a reasonable hour this evening, the Bill, as amended, is so far advanced in reprinting that it would be in the hands of Members early enough for them to examine it between to-morrow morning and Thursday, when we propose to take it as a first Order of the Day. I understand my right hon. Friend and the noble Lord both to say that it would be more convenient to have a discussion, in some form or other, upon the question 492 which would raise a distinct issue, and that the clause before us does not admit of raising a distinct issue between those who wish to abolish, flogging and those who wish to retain it. My right hon. Friend has suggested that the proper and most convenient arrangement would be to move an Amendment on Report; and I need only say that we are anxious to give every facility for a full discussion of what we all feel to be an exceedingly important question.
§ SIR WILLIAM HARCOURTpointed out that the Committee having passed the 44th clause, which enacted that there should be corporal punishment, it could not then be modified by taking any Division as to whether there should be corporal punishment or not. Such an issue could only be raised on Report; and it appeared to him desirable to bring the matter to that stage as early as possible. No doubt, many hon. Members wanted a Division at once; but that was impossible. What would be the advantage of taking a discussion upon a number of side issues and Amendments? They wished to persuade the country that the issue was an important and substantial one, and not raised for the purpose of delaying the progress of the Bill. He thought it would be best to allow the Bill to pass through Committee as rapidly as was consistent with the discussion of material matters. From any point of view this appeared the most desirable course, because they could not get any control over the Bill until they could control the 44th clause.
§ MR. OTWAYdesired to ask the hon. and learned Gentleman (Sir William Harcourt) whether he was right in his assumption that the question of corporal punishment could not be raised until the Report of the Bill was before the House, because it seemed to him that it could be very well raised on the Schedule? He wished to present the spirit of conciliation which had been so general in the House, and was quite willing to reserve any observations that he had to make for a future occasion. He rose, therefore, solely with the object of asking whether the hon. and learned Gentleman was correct in assuming that the question could not be raised before Report?
§ SIR WILLIAM HARCOURTsaid, nothing could be done in Committee 493 which, would remove from Clause 44 the words—"Corporal punishment may be inflicted for offences punishable under this Act."What was the use of taking a Division on side issues, when they were within two days of the Report? The course which had been suggested seemed to him to be the more Parliamentary and expedient course.
§ MR. PARNELLwas not prepared to say whether it would be advisable to continue"a course of persistent opposition on the question of flogging. He thought, however, there was a good deal of force in the observations of the hon. Member for Mayo (Mr. O'Connor Power), when he asked the Government for something in return for the abandonment of the Amendments at this stage of the Bill. It would be manifest to the Government that they would not be in a position to have the Report stage on Thursday; and he would suggest that it would be a great advantage to have an opportunity of calmly considering the whole question until the following Monday, when the Report might be finished. If the Government would agree to this, he should be justified in abandoning until then the position which he had taken in Committee upon this flogging question, and the Bill would undoubtedly go through Committee that evening.
§ THE CHANCELLOR OF THE EXCHEQUERI must remind the Committee that this particular question of flogging is one which has been so very much before the minds of hon. Members during a considerable time that there ought not to be any difficulty in preparing for the discussion on Thursday. The circumstances as to the pressure of time are so well known that I will not refer to them again; but it must be remembered that the present Act expires on the 25th instant, and that the present Bill has to go to the House of Lords, where it would be hardly decent to expect that the noble Lords interested in the matter should pass it without making some observations upon it.
MR. SULLIVANfelt he could speak for the hon. Members round about him, and say that it was their desire that this Bill should not be lost. The request of the hon. Member for Meath (Mr. Parnell) was in no sense made with the object of hazarding the passage of the Bill. He would suggest that the Report should be taken on Friday, when 494 he doubted not that the Government would have the Bill in an improved shape.
§ MR. BIGGARjoined in the suggestion that the Report should be put off until Friday. If hon. Members were only allowed one day to look over the Bill, they would not have time to put on the Paper any Amendments which they might think it right to propose; and the consequence of that would be that the Committee would not have an opportunity of sufficiently examining them before they were submitted to their consideration. Again, if hon. Members, owing to the short space of time allowed to them, were unable to frame necessary Amendments, the Bill would pass the House with a number of imperfections. He thought the Chancellor of the Exchequer would find the Business of the House despatched by taking the Report on Friday.
§ MR. CALLANthought that hon. Members would have ample time for the consideration of Amendments if the Report were taken on Thursday.
§ MR. RAMSAYfelt it to be requisite that the Bill should be proceeded with with the least possible delay; and that, although hon. Members might have but a brief period to consider Amendments which they might wish to make, they should consider also what was due to the other House of Parliament, and assent to the Government proposal.
§ DR. KENEALYsaid, it would be more advantageous, in his opinion, to bring on Report next Friday than upon Thursday. He had the greatest hope that after the remarks which had proceeded from the front Opposition Bench the Government would no longer entertain the least doubt that public opinion was entirely in favour of the abolition of the punishment of flogging in the Army. He did not hesitate to express his belief that the proposal which had just been made was a Party move. It was a Party move, because right hon. Gentlemen on his side of the House, having seen that the whole current of public feeling in England, Ireland, and Scotland was against the punishment of flogging, had adopted this opposition for the sake of catching the wind of popularity. He believed that if another day was allowed for the purpose of bringing on this measure, the Government would find, from re- 495 ports that would reach them from all quarters, that it would be most advantageous to the Service of the country to abolish flogging altogether, and that, in doing this, they had adopted a course favourable to their own interest.
§ MR. CHAMBERLAINthought that the appeal made to the Government was a reasonable one, considering the large concessions made upon his side of the House. If, however, the right hon. Gentleman could say that he believed the success of the Bill would be seriously endangered by taking Report on Monday, he did not see how he could be pressed to take it on that day. He felt that Friday would not be a very convenient day, because the debate would, in all probability, be adjourned, and have to be resumed on Monday.
§ THE CHANCELLOR OF THE EXCHEQUERSupposing we had Report on Monday, and that the discussion finished at a late hour, you will have to read the Bill a third time, and to send it up to the House of Lords, when it must be printed and laid upon the Table. That cannot be done before Wednesday or Thursday; and when it is considered that in the House of Lords there sit not only the Commander-in-Chief, but Lord Cardwell, the Secretary of State for War under the late Government, Lord Cranbrook, the late Secretary of State for War, and other noble Lords interested in this matter, it would, I think, hardly seem decent to expect that they would be able to pass the Bill through, as they do many Bills, without making any observations upon it. Then it must be remembered that the Bill may come down here with Amendments, and that the Royal Assent must be obtained on Friday week. I think it will be seen from all this that the time has been run very close; and that, as the House has been in possession of the Bill since the month of February, the other House would have a right to complain if the course proposed by hon. Gentlemen were followed.
§ MR. PARNELLasked the Chancellor of the Exchequer whether, if hon. Members abstained from further discussing the question of flogging in Committee, and in the event of the House deciding to retain that punishment, they would have an opportunity of moving their Amendments with a view to its limitation upon Report?
§ THE CHANCELLOR OF THE EXCHEQUERI do not think the hon. Member for Meath will have much difficulty in finding a place for any observations which he may wish to make. This is a matter in which the Government has no control. The Bill will be in possession of the House, and if there are any Amendments proposed they will have to be considered and discussed, whether Government wish it or not. We shall do everything in our power to facilitate discussion of all the Amendments which may be proposed, trusting, of course, that they will be reasonable, and that there will be no attempt to introduce anything irrelevant to the subject.
§ MR. PARNELLasked whether, in the event of the debate upon Clause 44 continuing to a late hour on Thursday, and in the event of the House deciding to retain the punishment of flogging, the Government would give hon. Members an opportunity of introducing new clauses and moving Amendments, with a view to the limitation of the punishment, at a Morning Sitting on Friday?
§ MR. MITCHELL HENRYthought that on Report no Member could speak more than once.
§ THE CHANCELLOR OF THE EXCHEQUERIt must be borne in mind that on Report new clauses take precedence of Amendments, and would, therefore, have to be discussed before any Amendment was proposed to Clause 44.
§ Clause negatived.
§ MR. PARNELLmoved, in page 18, Clause 44, to insert the following Clause:—
§ (Cumulative punishments.)
§
Cumulative punishments shall not be inflicted in respect of offences committed by persons subject to military law, and convicted by courts martial, in the case of penal servitude for a term exceeding seven years, and in the case of imprisonment for a term exceeding twelve months.
§ The hon. Member said, that during the Sitting of the Select Committee evidence was given that soldiers were sometimes in prison for six or seven years as the effect of cumulative sentences. That had, to a great extent, been done away with in the present Bill, inasmuch as cumulative sentences could not be inflicted for more than two years. He now wished to submit that they might be fairly limited to 12 months in certain 497 cases, because they were nearly always inflicted, for small and trivial offences; and a man sentenced for getting drunk, which in itself was not of a heinous character, might, as the Bill then stood, get a very severe sentence. He asked the Secretary of State for War to further extend the principle which had been already acted upon, and to say that cumulative sentences should not be inflicted in case of imprisonment for more than 12 months, and that in case of penal servitude they should not take place for more than seven years.
§ New Clause (Mr. Parnell) brought up, and read the first time.
§ Motion made, and Question proposed, "That the Clause be read a second time."
§ COLONEL STANLEYcould not accept the Amendment of the hon. Member for Meath (Mr. Parnell). With regard to penal servitude, he wished it to be understood that when a soldier was once condemned for crime to penal servitude he stood on the same footing as any other prisoner subject to the same punishment. As regarded accumulation of imprisonment, the hon. Member had himself drawn attention to the fact that it had been now limited to two years in all cases. That was the minimum to which, in his opinion, under all the circumstances, it was desirable to go.
§ MR. PARNELLpointed out that in ordinary criminal law it was not the practice to inflict cumulative sentences of imprisonment, but that it was the practice to inflict cumulative sentences of penal servitude. He asked the right hon. and gallant Gentleman to limit these sentences still further than was provided by the Bill.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)said, the hon. Member was mistaken in his impression that cumulative sentences of imprisonment were not given. They were given; but it was not usual that they should amount altogether to more than two year's imprisonment.
§ MR. BIGGAR,referring to the description given by the hon. Member for Kirkcaldy (Sir George Campbell) of the sufferings endured by soldiers undergoing long terms of imprisonment in hot climates, urged upon the right hon. and gallant Gentleman to agree to the 498 part of the clause relating to imprisonment. It was well known that when a man was sentenced to two years' imprisonment in a hot climate it implied either death to the individual or permanent injury to his health.
§ Clause negatived.
§ MR. PARNELLmoved, in page 18, after Clause 44, to insert the following clause:—"A soldier shall not be sentenced to corporal punishment more than once in twelve months."The hon. Gentleman said, that there had been several instances in which soldiers had been sentenced to corporal punishment within very short intervals. He did not say that there had been any recent instances of the practice, for, of course, the country had been at peace for a great number of years, and there had been no recent instances of the infliction of corporal punishment. In 1858 a case occurred in which a man was sentenced to receive 50 lashes thrice within six weeks. Between the second and third times of punishment his back was perfectly raw. There was nothing at present to prevent a man being flogged at intervals of three or four weeks, or even of one week. The power of flogging should not be allowed to become an abuse, but should be limited in a reasonable manner.
§ COLONEL STANLEYsaid, that if he were to accept the Amendment the result would be that if a soldier committed certain offences for which he was liable to corporal punishment, and again committed, the same offence within 12 months, he would escape all punishment. As to being flogged more than once in six weeks, of course he would accept the statement of the hon. Gentleman that that had happened; but he could not conceive the circumstances under which it could have arisen, for it was the duty of the medical officer to examine and certify in writing that a man was fit to undergo any punishment. If the case had been accurately stated there must have been gross carelessness on the part of the medical officer. He was afraid, however, that although they might put in this Amendment, preventing flogging from taking place more than once in 12 months, yet no clause in an Act of Parliament would restrain soldiers from committing the crimes within that period.
§ MR. BIGGARdid not know whether he was correct in his opinion; but he certainly thought that if a soldier was so bad a character that he required flogging more than twice in 12 months he was better out of the Army. The argument of the right hon. and gallant Gentleman seemed to him to be very much against the principle of flogging; and he would really suggest to him whether it would not be better to agree to the Amendment, and see whether men that required flogging more than once in 12 months could not be got rid off? If they were going to keep a soldier who required flogging twice in 12 months, that man would pass a long time in hospital, and his value to the Army would be very small. If this Amendment were adopted, a man could be got rid of who was of so bad a character that he required so severe a punishment as flogging twice in. so short a period as 12 months. All the arguments he had heard went to show that it was undesirable that men of vicious character should be mixed up with men of good character, who were likely to be influenced by their example. If a man were flogged twice in 12 months he would require to be put in hospital, and would only form a part of the non-effective branches of the Service; moreover, the country would be put to the expense of male or female nurses to attend him, and of a military surgeon to dress his wounds. Would it not be better, instead of incurring this expense for a vicious man of no use to the Army to turn him out of it?
§ MR. PARNELLasked, whether the right hon. and gallant Gentleman the Secretary of State for War doubted whether such a thing could happen as three floggings within six weeks after the instance he had given?
§ COLONEL STANLEYsaid, he did not doubt the accuracy of the hon. Gentleman.
§ MR. PARNELLwould not bind himself to the accuracy of what he had stated, for he had only had the information communicated to him. He thought if the right hon. and gallant Gentleman would refer to the records of the Royal Artillery of a certain place he would find that a soldier, called Davis, was flogged in the riding school three times within six weeks. On the first two occasions he took it very well, but the third time his back was covered with 500 ulcers; but, nevertheless, the medical man allowed the punishment to be inflicted. There was a great noise about the matter at the time, and he might mention that the name of the officer who inflicted it was Cartwright.
MR. SULLIVANknew of an instance which occurred in 1867, when a man was flogged twice in something less than a week. The man was tried for a specific offence, and sentenced to 50 lashes and two years' imprisonment. On hearing his sentence he threw up his cap, and called out for three cheers for the General presiding at the Court. He was called back, and sentenced to receive 50 more lashes and two years' more imprisonment. He got 50 lashes the next week, and within the same week received the second 50; he also served his four years' imprisonment. That incident occurred in Dublin, in 1867.
§ MR. OTWAYsaid, that the observations of hon. Members were thrown away. It had been urged upon the Government that a man who deserved flogging more than once in 12 months was better out of the Army. To that the right hon. and gallant Gentleman replied by reiterating the weak, foolish argument which they had heard hundreds of times when this question was discussed years ago, that they must not allow a soldier to see that he could be got rid of. Why, that was the very thing they ought to do—they wanted to get rid of the bad character. They had heard a good deal about the military authorities with regard to this question. He thought that the civilians in that House were much more competent to discuss this question, and advise upon it, than the military authorities, when they put forward the argument that it was better to flog a man twice in 12 months than get rid of him altogether.
§ Question put.
§ The Committee divided:—Ayes 37; Noes 65: Majority 28.—(Div. List, No. 169.)
§ MR. PARNELLmoved, in page 18, after Clause 44, to insert the following clause:—
§ (Instrument to be used.)
§
The instrument to be used in the infliction of corporal punishment shall be a cat-o'-nine tails according to the sealed pattern approved by the First Lord of the Admiralty, dated
501
the seventh day of December, One thousand eight hundred and seventy-seven, from the Royal Marine Office, and endorsed W. J. Rodney, D. A. G., but without knots.
§ The hon. Gentleman said, that it would be in the recollection of the Committee that, during the discussion upon the instrument to be used for the infliction of this punishment, some remarkable statements were made by the right hon. Gentleman the First Lord of the Admiralty. In reply to some observations made, he denied that there was any Marine cat, and he also denied that there was any cat used on board the training ship at Portsmouth. After some considerable contention, the cats were brought down to the House, and exhibited in one of the rooms, in the custody of the Ser-geant-at-Arms. There was also exhibited the cat belonging to the right hon. Gentleman the Home Secretary, in use in prisons. They then found that one of the cats from the Admiralty came from the Duke of Wellington, at Portsmouth. Another cat, which was called the Marine cat, was produced, and also a smaller cat, the one referred to in his Amendment, and which was said by the right hon. and gallant Gentleman the Secretary of State for War to be used in the Army. The result of the discussion that took place showed a very remarkable ignorance on the part of the right hon. Gentleman the First Lord of the Admiralty, the Home Secretary, and the Secretary of State for War, as to the instruments which they used in inflicting this punishment. The right hon. Gentleman the First Lord of the Admiralty admitted, at that time, that he had not seen the instruments; neither, he (Mr. Parnell) supposed, had the Secretary of State for War; and everything which happened then and since had shown the necessity that an instrument not of exceptional severity should be used in the infliction of this punishment. They had no information as to the nature of the cats used on board ship for flogging soldiers and sailors, or as to the nature of the cats used in the operations in South Africa. They had recently heard, upon the authority of the Government, that 200 soldiers had been flogged in South Africa—that was one out of every 75 of the Force there. He should be very glad to know what pattern of cat had been used; whether it was according to 502 the pattern of the Home Secretary—a cat of the most villainous description—or whether the cat was according to the pattern of that used on board the Duke of Wellington training ship, or whether it was according to the two other patterns found at the Admiralty? He was at a loss to understand that there was any pattern. It seemed to be left to the captain of a ship to choose his own cat, and to please himself as to the number of knots, and the weight of handle, and the length of tails. He thought it desirable that if they had an instrument of that kind it should not be one which would inflict an excessive punishment. He had chosen that pattern of cat which seemed to him to be the best. It was true the pattern he had chosen, now in the charge of the Sergeant-at-Arms, had a number of knots; but he thought the cat to be used should be without knots. If that punishment were to be inflicted, they desired to lessen the torture as much as possible; and since the House had decided to inflict the cat-o'-nine-tails they asked that there should be some uniformity in the instruments used, and that an excessive cat should not be employed.
§ MR. MACDONALDagreed with the proposition of the hon. Member for Meath. He might be misinformed; but he had strong reason to believe that the cat which had been exhibited, and which was said to be the Naval cat, was not the cat in use at the present moment in several stations where Her Majesty's Squadrons were. Three years ago he was in California, and it was there said to him—rightly or wrongly he did not know, for he did not see the hands turned out for punishment, and did not witness the flogging—but he was then informed that though an order had then gone forth, from the First Lord of the Admiralty, that a sealed cat should be used, that that was not the cat then in operation, but the same cat which was in existence 25 or 30 years before, and was in use in the Pacific Squadron. If that were the case then, and if that were the case now, unless it was specifically declared in the Bill that the cat to be used should be a cat without knots, what guarantee had they that the same thing should not occur again? He saw there an hon. and gallant Gentleman who had had some experience in Her 503 Majesty's Navy, and, perhaps, he would be able to inform the Committee if there were not a cat used with, more than nine knots? That being the case, he could, at least, speak from certain knowledge that such a cat did exist 30 years ago. He hoped that the hon. Member for Meath would go to a Division upon his Amendment.
§ MR. CALLANtrusted that the hon. Member for Meath would not be put to the trouble of going to a Division upon his Amendment, for he conceived that the right hon. and gallant Gentleman the Secretary of State for War was bound in honour personally to the House to accede to the Amendment. But, before he proceeded with that matter, he must be allowed to remark upon the departure from the House of the right hon. Gentleman the First Lord of the Admiralty. It was not only not respectful to the House, but it was not respectful to the hon. Member for Meath. No sooner had allusion been made to the Navy cat than the right hon. Gentleman sneaked out of the House.
THE CHAIRMANsaid, that the hon. Member must not use the words "sneaked out of the House,"as the expression was not Parliamentary.
§ MR. CALLANsaid, that he withdrew the word "sneaked,"and would only say that the right hon. Gentleman had covertly left the House. He had gradually moved along the Treasury Bench, until he imagined he could leave the House without being observed. He had left the House, evidently and purposely, to avoid exciting attention.
§ COLONEL STANLEYdid not think that the hon. Member would wish to misrepresent his right hon. Friend the First Lord of the Admiralty. He might explain that his right hon. Friend had merely gone to what the hon. and learned Member for Oxford (Sir William Harcourt) once happily described as "Committee of Supply."
§ MR. CALLANsaid, that he would reserve his remarks with reference to the right hon. Gentleman the First Lord of the Admiralty. In the original debate upon the clause as it was first placed before the House, the right hon. and gallant Gentleman the Secretary of State for War stated, in reply to the hon. Member for Birmingham (Mr. Chamberlain), that the Army cat had no 504 knots, and was exactly similar to the sealed pattern cat at the Admiralty. It was said in the House, in his presence, that the Army cat was precisely similar to the sealed pattern Army cat in the Navy; but it had been seen that the Marine cat was the only sealed pattern cat at the Admiralty. It was also said by the right hon. and gallant Gentleman, in reply to the hon. Member for Birmingham, that the Marine cat was without knots; the Marine cat had now been exhibited in that House, and had nine knots. Those assertions could not be contradicted, and the right hon. and gallant Gentleman, by his own admissions, was honourably bound to accede to the clause proposed by the hon. Member for Meath.
§ COLONEL STANLEYsaid, that there seemed to be some misapprehension, which he would endeavour to remove. Speaking from recollection, be believed that the first question he was asked was with regard to the pattern of the cat, and whether it was the same as the Navy and Home Office pattern? To that h e replied that, not being acquainted with either, he could not answer the question. He was then asked whether the cat had knots? He had never seen a cat for 20 years, and he could not exactly remember the pattern of it. With regard to the actual cat, he was asked to seal a pattern. Whether there was a sealed cat or not already he did not know, as the thing had not been in use for many years. He replied that he would seal the pattern, and that he would take the cat in use in the Army, whether better or worse than any other. There were obvious reasons for not departing from that pattern. He had also been asked whether that cat was similar to the Marine cat? He believed that it was; but as the instrument had not been in use in this country for 10 or 12 years it was difficult to speak with regard to it.
§ MR. CALLANsaid, that the right hon. and gallant Gentleman was under a misapprehension. In the course of the debate it had been stated that the cat in the Army was the same as they used in the Navy; it was also stated that the sealed pattern cat at the Admiralty had no knots. The instrument deposited in that House, in the charge of the Sergeant-at-Arms, consisted of nine tails of strong whipcord, with nine 505 knots at the end of each, tail, which, would inflict, in the hands of a skilful administrator, such punishment as would remove 81 pieces of flesh. [Colonel STANLEY dissented.] The right hon. and gallant Gentleman shook his head; but he (Mr. Callan) had not the slightest doubt that that would be the result of the experiment, if they could find a subject to make it upon. He would suggest that the cat-o'-nine-tails at the Admiralty, and the Marine cat, at present the only sealed cat—the cat with nine tails and nine knots—should be made the universal pattern. They should eliminate the nine knots from the nine tails of that cat, and they would diminish the question by eight-ninths. He did not know whether he should be right in referring to the Naval cat in the absence of the right hon. Gentleman the First Lord of the Admiralty; he only wished, however, to make a comparison. The Marine cat was not the Navy cat; but he saw at the Admiralty the Navy cat. When he saw it it was endorsed, "Specimen approved of, lodged in store many years ago." But when that cat was deposited in the care of the Sergeant-at-Arms that endorsement was removed, and the following endorsement was substituted:—"Specimen cat, approved of for use on board Her Majesty's ships for seamen and Marines." He had been contradicted with reference to his statement that there was a Navy cat and a Marine cat. The hon. Member for Meath put a question to him with reference to the matter, and he stated, in reply, that the endorsement had been, changed. That was the first opportunity he had had of saying that that endorsement had been changed, and the person who informed the right hon. Gentleman the First Lord of the Admiralty that the former endorsement had been removed, because it was no longer required, was unworthy of holding office in the Admiralty. He was sure that the right hon. Gentleman had not made the statement of his own knowledge; it was a deliberate falsification by some subordinate officials in the Admiralty. Acting upon the information given him, the right hon. Gentleman the First Lord of the Admiralty had come down to the House and stated that the endorsement had been removed because it was no longer required. But if no longer re- 506 quired, why not send the cat to the Museum? The whole matter, in connection with these cats, had been conducted by the right hon. Gentlemen the First Lord of the Admiralty and the Secretary of State for War, not from their own knowledge, but from the misleading statements of subordinates. It was due to themselves, as Members of that House, to ascertain and investigate who were the persons really responsible for these falsifications. He did not suppose that the right hon. and gallant Gentleman the Secretary of State for War had ever seen a cat in his life. He could not see what objection he could have to remove the nine knots from each of the nine tails. The vote which they were about to take was upon the question that the Secretary of State for War insisted upon having nine knots at the end of each of the nine tails, in order to scarify a poor soldier's back by taking off 81 pieces of flesh. That was the vote which they would have to give next Thursday—namely, whether the cat was to have nine tails, and nine knots to each tail? If the nine knots were removed from the end of the tails, he would not go to much inconvenience in coming to the Division on Thursday; but unless the right hon. and gallant Gentleman removed those knots he could not lay much claim to the merciful consideration hitherto shown him at the hands of hon. Members.
Notice taken, that 40 Members were not present; Committee counted, and 40 Members being found present,
§ MR. BIGGARsaid, that so far as he knew, the Secretary of State for War had not given them any information as to what the nature of the cats to be used was to be. He should be glad to know to what extent the cat he recommended resembled the sealed cat in the possession of the Sergeant-at-Arms?
§ MR. CHAMBERLAINsaid, he had an appeal to make to the hon. Member for Meath, and he wished to point out what he thought was rather delaying the further progress of the Bill. His hon. Friend was very anxious, if the House should hereafter affirm the continued propriety of corporal punishment, that he should have an opportunity of moving the various limiting clauses; and he understood from the Chancellor of the Exchequer that those clauses would have 507 to come first on Report. It would be extremely inconvenient to take up the time on Thursday in discussing those limiting clauses, when the House really wanted to come to a Division on the main question. What was really desired was that Thursday should be occupied, so far as it was necessary to be occupied at all, by a discussion on the main question. A Division would probably be taken late at night as to whether there was to be any flogging at all. That question having been decided, his hon. Friend wished to have an opportunity of moving his limiting clauses, which opportunity he would obtain if the Chancellor of the Exchequer would undertake that the debate on the Report should then be adjourned to a Morning Sitting on Friday. If that could be arranged, he would advise his hon. Friend to withdraw his Amendments now and reserve himself for Friday.
§ THE CHANCELLOR OF THE EXCHEQUERsaid, he was most anxious to make any arrangements which would facilitate the discussion of that question; but, of course, the Government had not the power to override the Rules of the House, and one of those Rules was that when a Bill was discussed upon Report new clauses must be disposed of before they came to the Amendments. If, therefore, they had any new clauses to propose, unless one of them should raise the whole question of the principle of flogging, to which he had nothing to say, they must discuss those clauses before they came to the amendment of the Bill in detail. He should, of course, be most anxious that the discussion should be continued, if necessary; and if the Bill were not finished on Thursday he should propose a Morning Sitting on Friday, and, if necessary, a Sitting on Saturday as well, though he did not like to propose Saturday Sittings.
§ MR. HOPWOODasked, whether it would not be possible for his hon. Friend to move some general affirmation on proceeding to the consideration of the Report?
§ MR. DILLWYNsaid, that there was another plan. The whole question might be raised upon another clause, which could be taken before all other clauses. Perhaps that would be a more convenient course.
§ COLONEL STANLEYsaid, that, personally, he was inclined to agree with the hon. Member for Swansea (Mr. Dillwyn); but the matter did not rest in their hands. It was competent to any hon. Member to move a new clause; but, of course, the precedence of these clauses inter se must be decided by hon. Members themselves; and, in that case, if the clause were taken it would probably be advisable to take it early.
§ MR. CHAMBERLAINasked whether the Chancellor of the Exchequer would be willing to give up Friday to the Amendments?
§ THE CHANCELLOR OF THE EXCHEQUERsaid, he should be very glad if the discussion on corporal punishment could be taken the first thing on Thursday, and if any arrangement could be made by which the question could be so raised. It would then run on; and, of course, the Government would be quite willing to make any arrangements by which the other discussion might be concluded. He would not anticipate the discussion on corporal punishment, which might last the whole night. It it did not finish on that night, they would, of course, be prepared to continue it on Friday morning.
§ MR. CHAMBERLAINasked whether the discussion would go on late on Thursday night?
§ THE CHANCELLOR OF THE EXCHEQUERthought it was rather inconvenient to put all these hypothetical questions, because it was impossible to say what might happen. The Committee, however, were perfectly aware of what the general feeling of the Government was. They did not wish to keep the Committee sitting at unreasonable hours, nor, on the other hand, did they wish to shorten or stifle discussion; but, at the same time, they wished to get through the Bill, so as to let it go out of that House in the course of the current week.
§ MR. PARNELLsaid, that all he wanted to secure was this—after the field day on Thursday, and in the event of the House deciding on corporal punishment, he wanted to have on Friday an opportunity of asking the House to limit the matter in certain ways. There were, for instance, the Amendments on the Schedule, which, otherwise, it would be necessary to move that night. He thought, however, it would be great waste of time to go on moving Amend- 509 ments with, regard to flogging that night pending the decision of the House, which was to be taken on the Report; and if there was any way in which their right would be recognized to move those Amendments subsequently to the debate on the principle of flogging on Thursday he should be perfectly satisfied, and would not detain the Committee by pressing those points at that moment. He thought that the Chancellor of the Exchequer meant to deal fairly by them, and that they need not further press their Amendments that night.
§ THE CHANCELLOR OF THE EXCHEQUER,before the Motion was withdrawn, wished to say that this was exactly one of those cases where the proverb, "Where there's a will there's a way," applied. If they agreed that there should be, first of all, on Thursday a discussion upon the main principle of flogging, they would leave it entirely to hon. Gentlemen to consider how they would like to raise their Amendments. They could ascertain what the Rules of the House were upon that point. The Government, on their part, were perfectly ready to offer facilities on Friday for the discussion of any limitation hon. Members might wish to propose, provided they would take care that they were proposed in such a way as not to raise unnecessary side issues, but would let the House go, without waste of time unnecessarily, to the discussion of those limitations. Possibly, the House might then be ready, having put the Bill into shape, to read it a third time at once.
§ MR. CALLANwished to correct a misapprehension that had arisen, to the effect that the Navy cat had knots upon its tails. That was not so, it being a peculiarity reserved for the Army cat.
§ Clause, by leave, withdrawn.
§ MR. PARNELLmoved to insert, after Clause 53, the following clause:—
§ (Prisoner may be represented by legal adviser.)
§
A prisoner tried by court martial shall be entitled, to be represented by a legal adviser, who shall conduct the defence of such prisoner in like manner as' in a trial before a court of civil judicature, subject to such rules of procedure as may be from time to time adopted in accordance with the provisions of this Act for the conduct of courts martial.
§ The hon. Gentleman said, that the subject with which the Amendment dealt 510 was a very important one. At present, a prisoner tried by court martial was not entitled to have his defence conducted by a counsel or a solicitor. Prisoners were allowed to be represented by a friend, which friend was usually a legal gentleman. They had not the advantage of having before them, the rules of procedure that were being adopted by the Government with regard to the proceedings of courts martial. One of the clauses of the Bill gave to the Secretary of State for War power to frame rules and proceedings for courts martial; but they did not know what those rules were at present, though he assumed that the old practice would be continued, and that there would be no material alteration made, so far as that part of the procedure went. But, at the same time, he thought it would be of the greatest possible importance that it should be a settled and understood thing that a prisoner tried by court martial should be entitled to have his defence conducted by a professional adviser, otherwise they might have a court martial refusing to allow a prisoner to be represented. The Select Committee which inquired into that Bill last Session made a very strong representation, to the effect that in every case a prisoner should be permitted to have the assistance of a legal adviser, though they did not recommend that such a provision should be embodied in the Bill, or made part of an Act of Parliament. There was rather a difficulty as to the way in which to arrange it, because the Committee did not consider that question until very late in the Session, when they had very little time before them, and, consequently, could not have the advantage of witnesses who were capable of speaking with authority on the question. But he would submit that now that they were passing a permanent Act they should not let the opportunity go by without securing for the soldier or the officer who was to be tried the privilege of having legal advice, if he so desired. In fact, he thought that in a case where a soldier was unable to pay for that advice a counsel ought to be assigned to him, just as a counsel was assigned to an undefended prisoner in an ordinary civil case. The Act was a very complex one. It created a variety of new crimes and new offences, the 511 punishment for which, was very severe. It was, therefore, of the greatest importance that the soldier should be represented, at all events, on a court martial, when he was being tried for any serious offence, by a competent adviser, who was capable of understanding military law.
§ MR. CAVENDISH BENTINCKsaid, that the subject was one which had been under the consideration both of the House and of other Bodies, to whom the Civil and Military Law of the country had been referred. The hon. Member for Meath seemed to be hardly aware that the present practice was not a practice under a recognized Statute, and the employment of counsel as a friend was merely the result of a provision in the Queen's Regulations. He had not the Queen's Regulations in his hand; but they provided for all proceedings by court martial, and, amongst other things, it was provided and established that a prisoner should be represented by counsel—that was, by a friend acting as counsel, though that friend was not allowed to address the court, nor to cross-examine witnesses. It would, however, be quite open to the Secretary of State for War, if he thought proper, to alter his Regulations, and to declare that a prisoner might be represented in a court martial exactly as in a. civil court. It was, however, the opinion of all the authorities, and of those who had given evidence upon the subject, that it was not in any way desirable to change the present practice. Amongst others who had given valuable evidence was that of an hon. and gallant Member who he regretted not to see in his place. That hon. and gallant Gentleman, having been examined as a witness, and having great experience on the subject of courts martial, gave very strong evidence in favour of the present practice, and that opinion he repeated in his place in equally strong terms. The objection to any alteration he would state shortly as follows:—First of all, it started with the proposal that if a prisoner was too poor to employ a counsel the Government should assign a counsel to him. That would entail enormous expense; but passing by that, the great objection to the proposal was that it would place the court, which was essentially a military court, under a disadvantage if cases were always to be ar- 512 gued upon one side and the other by skilled lawyers. According to the hon. and learned Member for Oxford (Sir William Harcourt), he had not wished to see barristers on one side or the other. If it were allowed, then the legal staff, the staff of advocates, would be superior to the court itself, and, in all probability, justice would not be done. But if they allowed prisoners always to be represented by professional advocates, it would be necessary for the Government also to have a large legal staff always at their disposal, not only upon general courts martial, but also upon district and regimental courts martial. There would always be a crowd of men willing to serve and pick up cases; it would be necessary for the Secretary of State always to be ready with advocates on the other side, and endless expense would thus be incurred. Now, let them see whether there was any injustice to the prisoners in the present system. He had seen a good number of those cases since he had held the Office he was in; and he certainly sided with the military authorities in considering that no alteration was necessary; although, if he thought for one moment that if any injustice to a prisoner was done, he should be the first to recommend an alteration. At present, the prisoner had a friend who was a professional friend. He prepared all the questions; he wrote the defence; in fact, he did everything for the prisoner, except addressing the court. Under the present regulations, all that took place at courts martial were taken down in writing by some person who was employed for that purpose, or else by a shorthand writer. That being so, he did not think, himself, that the prisoner would be so very much benefited by having questions, in the nature of cross-examination, put suddenly to witnesses. Every question that a witness desired to put to witnesses, either in the examination-in-chief or cross-examination, could be put, and he did not see under what disadvantage the prisoner lay. He might also mention that all findings and sentences of courts martial were submitted to the Judge Advocate General. The Deputy Judge Advocate also attended every general court martial as a matter of course, and he attended district or regimental courts martial when his services were required. When he was present it was his duty 513 to watch the proceedings, and to see that no prisoner was put to any disadvantage, and he acted, to a certain extent, as the prisoner's friend. Then, after all that, the proceedings, which were in writing, had to go to the Judge Advocate General's Office, where they were perused with the greatest care, and where it was absolutely certain that if there was any point whatever which tended to the disadvantage of the prisoner it was rigidly examined, and, if possible, turned to the prisoner's advantage. He might say that since he had held the Office of Judge Advocate General he had never heard of a complaint, on the part of a prisoner, that he suffered from the action of the present system; and, under those circumstances, seeing that the practice had been established for a long time without detriment to the Public Service or to the prisoners who were tried; seeing also that the practice had the approbation not only of the military authorities themselves, but of those skilled persons who had been examined by Commission or upon Committees, he could not see any reason for any alteration in the present practice, an opinion in which he believed he should be confirmed by his right hon. and gallant Friend the Secretary of State for War. He, for one, would venture to submit to the Committee that this was not the proper way to make the change, even if the change itself was not objected to. The proposal of the hon. Member for Meath was one which he thought the Committee could not accept. The procedure which he recommended might, or might not, be advisable; but to put it into the Statute was a proceeding to which he should very strongly object. He was sure that the proposition would meet with the objection of the Government, and, indeed, of any Government who had the conduct of legislation. To change the procedure was one thing; but to put it into the Statute was quite different.
MR. SULLIVANthought there had been a good deal more of the General than of the Judge in the speech which they had just heard. The right hon. and learned Judge Advocate General had told them that a prisoner at present had legal assistance only; that the assistant was to be called a friend; and that, as a matter of fact, at many courts martial a barrister or solicitor 514 was that friend. What was now proposed was that the cumbrous machinery and grievous waste of time involved in writing down and handing in the questions to the President of the court might be abolished, and in place of that the right of questioning should be put into the hands of the prisoner's counsel. He never heard anything more lame or illogical than the statement put forward from the Treasury Bench. It was said they had already legal assistance, and therefore they could not allow a prisoner to have any further legal assistance, in the same manner as a man on trial for his life in a civil court had a right to legal assistance. It was said that it was not for the convenience of the military tribunal that any further legal assistance should be permitted. If the forms of the law for the due and essential protection of life and liberty in civil courts were not a myth, then they should be adopted, so far as possible, in military tribunals. If the forms of defence allowed a man upon trial for his in ordinary civil courts were useful for bringing out the facts and for the protection of innocence, surely the man on trial for his life before a court martial ought to be allowed the protection of those forms of procedure. The right hon. and learned Gentleman had assumed that the accused already received substantial justice, and that they were allowed counsel; and he further said that if the counsel were to be allowed to put questions to the witnesses he did not see what the Crown could do. As if the Crown could not find counsel to represent it! He had not the slightest doubt that the Committee would agree that if these things were necessary for the protection of innocence or the conviction of crime, they must in that case import something more than judicial proceedings into a court martial. The proceedings of a court martial would be held under this Statute; and, therefore, upon the provisions of the Statute they were then passing would depend the efficient defence of many military prisoners. He would put to the Judge Advocate General to judge this matter as a Judge, and not as an advocate or a General, and consider whether it was not time, when they were passing such a measure as the present, that they should allow a prisoner on his trial before a military tribunal that defence and pro- 515 tection which the law cast around the same man if on his trial before an ordinary civil court.
§ COLONEL STANLEYagreed with his right hon. and learned Friend the Judge Advocate General that very much was to be said as to the disadvantage of inserting a provision of the nature proposed in an Act of Parliament. He fully agreed that it would be much better to make this a matter of regulation. He might point out that if it were put into the Act that a prisoner tried by a court martial should be entitled to be represented by a legal adviser, and that the court had power to have a legal adviser for the defence of the prisoner, they would be doing a great deal of harm, for there were many petty cases of courts martial—such as absence without leave—where the evidence was perfectly clear, and the prisoner had even admitted his guilt, in which there was not the least necessity for counsel to be employed for the prisoner. Moreover, considerable delay in the trial might be caused by such a provision. He had no hesitation in saying that he had always been in favour of adopting, so far as he could, such improvements in the procedure of courts martial as might be consistent with the efficiency of the Service. But, under the varying circumstances, it was impossible to lay down a hard-and-fast line in matters of procedure; and he did not think it likely that wherever a prisoner applied to be defended, either by an officer or by a legal adviser, his request would be refused. Such a request was never refused when there was reasonable ground for granting it. But he thought to put into an Act of Parliament a hard-and-fast line allowing prisoners to retain counsel might lead to a miscarriage of justice, and, in the result, might tend rather to the disadvantage of the prisoner than otherwise.
§ SIR HENRY JAMESdid not think that the right hon. and gallant Gentleman the Secretary of State for War had quite apprehended the effect of the proposed new clause. In his opinion, the clause was a very reasonable one, and he would support it to the best of his ability. The right hon. and gallant Gentleman seemed to think that if a hard-and-fast line were drawn, giving a prisoner a right to a legal adviser, delay would be caused in the adminis- 516 tration of justice. That was not the object of the Motion. In cases, however small, before a magistrate in a civil court, the person accused of a minor offence could obtain legal assistance if he pleased. To say that the accused person had a right to legal assistance was not the same thing as to say that he had it. He had it if he could obtain it. This was really a somewhat serious matter, and he must take exception to the manner in which the right hon. and learned Gentleman the Judge Advocate General had dealt with the matter. One of the arguments he used against the suggestion was, he admitted, an argument which had very great weight with him. The Judge Advocate General said that one objection to the Amendment was that the hon. and learned Member for Oxford (Sir William Harcourt) did not approve of it. Naturally, he (Sir Henry James) attached great weight to the opinion of his hon. and learned Friend; but he thought that the Government should be as mindful of his opinions on other occasions as on the present. He would suggest to the Government that the next time that his hon. and learned Friend the Member for Oxford expressed an opinion they should at once give way to him, before they asked other hon. Members to do so on the present occasion.
§ MR. CAVENDISH BENTINCKsaid, that the hon. and learned Member for Oxford had given evidence before the Royal Commission upon courts martial, when this subject was very much considered.
§ SIR HENRY JAMESsaid, that unless the Judge Advocate General agreed with what his hon. and learned Friend the Member for Oxford said the next time he heard him he could not be bound by his argument. Another suggestion put forward by the right hon. and learned Gentleman the Judge Advocate General was that prisoners now had legal assistance, and that they did not want more. He said, also, what legal assistance could the Crown have if the prisoner were represented? The best way to meet that difficulty was to let the Judge Advocate General appear in person. Let him conduct the case on the part of the Crown, and what chance would the prisoner have against him, in weight of eloquence, knowledge, and skill, in cross-examination? But even under such 517 disadvantages, he saw no reason why justice should not be done; and he thought they should consider the subject very seriously. The reason for the opposition to the proposal was, as the Judge Advocate General had said, that the military authorities were against it. There was no doubt they would be against it; but he would ask the Committee seriously to consider the arguments in favour of the clause. The Committee must recollect that, for the first time, the Legislature was placing civilians under military law. At the wish of the Government they had accepted the 167th clause, which placed camp followers under military law. Everyone accompanying a camp—were he newspaper correspondent, civilian, or the humblest sutler—was brought under military law. Was it not right, therefore, to ask that the civil rights belonging to every civilian should be accorded to him? And it was especially necessary that his case should be stated from a civilian point of view. The course now taken was to allow an adviser who, it was said, might be either a legal adviser or a military adviser. But the prisoner's adviser was not allowed to ask a witness a single question. It was said that the questions must be written down and filtered through the court. What chance, therefore, was there of detecting a dishonest witness who always prevaricated? If the Judge Advocate General were examining a witness, he would not give him time to reflect what answer to give, for reflection only produced dishonest answers. What was the result of the present system? One result was to cause a great and unnecessary waste of public time. Another result was injustice to everyone, for by those means they could never obtain from a witness the quick answer—the answer of truth. Those were his objections to the present system; but what the right hon. and learned Gentleman the Judge Advocate General said was that he did not say whether the practice was right, or whether it was wrong; but he did say that the change ought not to be made by Statute. Now that they had made civilians subject to military law, they should take care to see that injustice was not done. Every argument used by the right hon. and learned Gentleman could be used against the prisoner. All that the Judge Advocate 518 General did was to ask them to trust to the Government, and allow them to regulate the procedure. But they had just now heard the Government state that they did not think that this right should be conceded. The Judge Advocate General would say, when consulted about the matter—"The hon. and learned Member for Oxford objects to it; you will see that you cannot get counsel for the Crown; it is a thing that had better not be done." The matter should not be left to chance; but it should be stated in the Bill that, in some form or other, prisoners should be entitled to be represented by counsel at courts martial. It must be a matter of general regulation, and not of particular regulation; and, therefore, the Committee must decide the question once for all. The Government had told them that they would not make it a subject of general regulation, and they could not make it a subject of particular regulation. He had not, hitherto, placed himself in opposition to the Bill; but that was a matter to which he had always been anxious to draw the attention of the House, and he should, therefore, support the hon. Member for Meath, and he trusted that he would go to a Division upon the question.
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)thought that these matters had become somewhat confused. In the first place arose the question, whether an accused person should have a right to counsel? With that proposal he was disposed to agree in principle. He thought that, in some form or other, the prisoner ought to have counsel; but there was another totally different question involved, which should be treated in a different way. They were not then dealing with the procedure of ordinary Courts of Justice, but that of a military tribunal. He did not wish to detain the Committee by detailing the proceedings of ordinary Courts of Justice, and he would only say that they arrived at their conclusions by an entirely different method from that which was adopted by military tribunals. In a civil court they had a Judge, whose duty it was to examine what evidence should be submitted to the jury, and to direct them upon it. In a court martial, on the other hand, each member of the court was both a judge and juryman; and the difference between the mode of examining and cross-examining in those courts, and that pursued in the ordinary 519 civil courts, resulted from the difference in the constitution of the two sets of tribunals. He believed that the practice of putting questions in writing had not been found inconvenient, and had not, he believed, produced any injustice. But the Amendment, besides giving the accused the assistance of counsel, went on to say that his counsel—
"Shall conduct the defence of such prisoner in like manner as in a trial before a court of civil judicature.Did that mean that the procedure was to be the same? If it did mean that the procedure was to be the same as that adopted in a civil court, instead of the questions being reduced to writing, the prisoner's counsel would be at once entitled to cross-examine. That might be either right or wrong; but if it were intended, what was the meaning of saying that these courts were to be subject to such rules of procedure as might be, from time to time, adopted in accordance with the provisions of the Act for the conduct of courts martial? The rules of procedure would, probably, provide for the military forms of proceedings to be adopted, and there would at once be a conflict. Before the Committee could be asked to decide upon this question, they ought to know what was intended. "Was it intended to force upon the military tribunal the form of procedure used in the Law Courts? If so, let it be plainly expressed, and then it would be found that military men would point out reasons why those forms of procedure, very useful in themselves and indispensable in civil courts, were totally inapplicable to military tribunals, which were generally composed of laymen, and had only to determine simple questions of fact. In its present form, it seemed to him that the Amendment was inadmissible, for it did not state what form of procedure was intended to be enforced by the Statute; and if it were intended to enforce the procedure of the ordinary Courts of Law upon courts martial, then he said that that object was undesirable.
§ SIR ALEXANDER GORDONhoped that the right hon. and gallant Gentleman the Secretary of State for War would be very cautious before he gave any promise to adopt this Amendment in any shape or form. The hon. and learned Member for Taunton (Sir Henry James) had answered the Judge Advo- 520 cate General by telling him to conduct the prosecution, himself. How could the right hon. and learned Gentleman do that, when courts martial were held in all parts of the world, and in places where no lawyers could be obtained. He did not think that the hon. Member for Meath (Mr. Parnell) had placed the question in a proper form before the Committee. He spoke of the prisoners not being allowed the advice of legal friends; but the fact was that they could advise with as many legal friends as they pleased. The only condition was that the prisoner's friend was not to address the court by word of mouth. That was the only condition, and when it was considered that officers were not lawyers it seemed to him to be a just and proper provision. He would mention that the Lord Chief Justice of England had stated that, in his opinion, courts martial were the most fair tribunal known to the law, and that they were always in favour of the prisoner. Then the Court Martial Commission of 1869 had expressed a similar opinion. Sir Colman O'Loghlen had also given an official opinion that the proceedings of courts martial were highly fair and equitable. He did not think that there was any necessity to permit counsel to address the court in defence of the prisoner. He trusted that the right hon. and gallant Gentleman would not accede to the proposal of the hon. Member for Meath.
§ MAJOR NOLANdid not think that the hon. and gallant Member for East Aberdeenshire was quite right in stating that soldiers were not lawyers. There were many instances to the contrary. He believed that several American Generals were lawyers before the war began. He would very strongly support the view of the hon. Member for Meath—a view which had been so strongly advocated by the hon. and learned Member for Taunton (Sir Henry James). He was not quite certain whether some limitation should not be introduced into the Amendment. He would recommend that the power to employ counsel should be limited to general or district courts martial, and that at smaller cases coming before a regimental court martial counsel should not be allowed. He must say that the arguments of the hon. and learned Solicitor General were not convincing to him. The argument of the hon. and 521 learned Gentleman was, that because the questions were put into writing there was no necessity why counsel should be employed in cross-examination. What he would suggest was, that in making rules for the procedure of courts martial it should not be necessary to put down all questions in writing; but that a precis of the proceedings should be made, and so the cumbrous nature of the proceedings, as at present conducted, would be avoided. He also thought that some discretion should be left to the Presidents of the courts, in order to the saving of time, and the simplifying of the proceedings; and he could not accept the proposition that the presence of counsel in courts martial would have the effect which he desiderated. As far as courts martial were concerned—and he spoke from personal knowledge of them—the questions to be decided were, in 19 cases out of 20, of the most simple character; and the plan which it was now proposed to make general would only apply to the twentieth case. He had, on many occasions, noticed the disadvantage at which a prisoner was placed by the present cumbrous system under which the President of a court martial declined to put down in writing a question which a prisoner wished to put who was, so to speak, working round to the basis of his defence. The labour of writing down the questions very often caused the Presidents of courts martial to decline to allow them to be put. In France, at the present moment, there was no objection to courts martial being addressed by legal gentlemen; and he certainly failed to see the validity of the objections which had been raised to the proposal of the hon. Member for Meath on the present occasion.
§ SIR JOSEPH M'KENNAthought that if there was any real force in the objections which had been raised by the hon. and learned Solicitor General, they would equally apply to the employment of counsel on examinations of accused persons before magistrates who, in many cases, were not lawyers. Such a practice as had been adopted in courts martial would certainly not be now followed in the ordinary criminal courts of the country; and he saw no reason why it should be continued in courts martial. He could see no reason, moreover, why civilians, who were, for the first time, 522 brought under the operation of military law, should be at once deprived of the rights which they would have enjoyed if they had remained civilians, and declined to serve their country as volunteers.
§ MR. HOPWOODwas unable to see that there could be greater inconvenience in having legal gentlemen—whether attorneys, or solicitors, or barristers—present at courts martial, than there would be in allowing their presence at any other Courts of First Instance in criminal, or quasi-criminal, cases. It had been said that the only way out of the difficulty was to employ professional shorthand writers; but he was unable to see the necessity of taking any such step, because there must surely be in every regiment several men with sufficient clerical ability and general intelligence to take down a precis of the evidence given at any court martial that might be held.
§ MAJOR O'BEIRNE,while supporting the proposal which had been made, would limit its operation to general courts martial. If it was extended to regimental and other courts martial, the men would form clubs for the employment of legal assistance, and the result would be an enormous loss of time, without any corresponding gain, as far as the discipline of the Army was concerned.
§ SIR GEORGE CAMPBELLopposed the proposal to allow counsel to appear in military, as in civil cases, on the ground, mainly, that, in the majority of cases, it would not be possible to retain efficient counsel to appear; but, on the contrary, counsel might appear who would not assist the court.
§ MR. HERMONpointed out that the Bill, if passed, would put many thousands of civilians under military law who were not under that law at present; and, therefore, he saw no reason why those persons should not be put on an equal footing with the civilians, whose ranks they left in order to join the Army.
§ MR. E. JENKINSthought it would be well, even if prisoners were not allowed legal assistance, that they should have the sort of assistance which would be afforded by appointing legal assessors to assist at courts martial, so that such courts should be conducted according to the rules of evidence. He wished to point out to the Secretary of State for War that, whatever might be said by 523 military Members of the House with regard to the constitution and procedure of courts martial, grave dissatisfaction existed in the Army with, respect to the procedure, and it was necessary that steps should be taken to place that procedure on a better footing. Of course, in small courts martial it might be inconvenient to have counsel present; but it was not impossible to give a prisoner the option of employing counsel. In 99 cases out of 100 that option would not be taken advantage of; but there could be no practical harm in giving a soldier an opportunity of exercising it. If permission were granted in higher cases, surely the same privilege ought to be extended to soldiers. He would like to hear from the Secretary of State for War that some effort would be made to alter the existing state of things. He did not say whether the alteration should be expressed in the clauses of the Bill, or whether it should be established by Queen's Regulation; but the right hon. and gallant Gentleman ought to give the Committee some pledge that an effort would be made to improve the administration of justice at courts martial, and to insure their being always well advised by legal authority. It was time that the Office of Judge Advocate General should be made one of authority; that the Judge Advocate General should be a person in whom the whole Army might confide, and on whose opinion not only officers, but soldiers, might rely. He was making no invidious suggestion in pointing out what, in his opinion, a Judge Advocate General should be. It was not necessary to regard this as a personal matter; he was considering it in the abstract. He wanted to know whether the Secretary of State for War was prepared to entertain any of the proposals which were on the Paper for the purpose of improving the constitution and procedure of courts martial? Because he should certainly support the hon. Member for Meath if he went to a Division, unless the right hon. and gallant Gentleman was able to show that the establishment was being considered of some mode of procedure which would secure at every court martial the presence of some person who had studied military law, and was competent to give an opinion upon it. That was not unreasonable. Every soldier ought to feel that the proceedings would 524 be so conducted that when the Judge Advocate General became possessed of them he would see, if he happened to be a lawyer, that no irregularity had been committed. He called upon the right hon. and gallant Gentleman to make some statement with reference to the matter; and, in the meantime, he could only say he considered that the proposal of the hon. Member for Meath was one which ought to be supported by the Committee.
§ COLONEL ALEXANDERwished to point out to the hon. Members for Preston (Mr. Hermon) and Dundee (Mr. E. Jenkins), and the Committee generally, that under the Queen's Regulations a soldier could already have a professional adviser, although the adviser could not address the court. That was exactly what the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) had stated. He quite agreed that it was only at general courts martial a professional adviser could possibly be required, as at a regimental court the evidence was, as a rule, purely formal, and having a professional adviser in such, a trumpery matter as that would be a waste of both time and money.
§ SIR CHARLES W. DILKEdid not know whether the hon. and gallant Member who had just spoken was in the House when the hon. and learned Member for Taunton (Sir Henry James) addressed the Committee, as the hon. and learned Gentleman, in a powerful speech in favour of the new clause, showed how utterly incompetent courts martial, as at present constituted, were to elicit facts in a satisfactory manner. It was quite clear, now that civilians were, under certain circumstances, liable to be tried by court martial, that a proposal of this kind ought to be adopted. During the discussion strong objections had been urged against the employment of counsel in regimental courts martial, and it was possible that the hon. Member for Meath would be willing to omit those courts from his clause. He would, therefore, suggest whether the Government might not be able to settle the question on that basis.
MR. COLEsaid, it struck him that the most important part of the new clause was that relating to the mode in which a counsel or solicitor should conduct the defence of a prisoner under trial by court martial. It was admitted 525 that by the Queen's Regulations counsel were entitled to appear; but, at present, where they did appear they were perfectly useless, as all they could do was to write questions on paper and pass them to the court. One of the principal uses of a counsel was the exercise of his power of cross-examination; but that power was now entirely destroyed by the manner in which counsel were muzzled. They were unable to address the court; but he submitted that they ought to be able to act as if they were appearing before an ordinary civil tribunal. Certainly, in important cases, prisoners ought to be entitled to the assistance of counsel, though it was not necessary that the same rule should apply to small regimental courts. He strongly advised the Committee to adopt the clause—at all events, so much of it as would enable a counsel to conduct a case at a court martial in the ordinary way.
§ MR. OTWAYthought it desirable that perfect equality should be established in the trial of officers and soldiers. He agreed with what had been stated with reference to regimental courts martial; but he wished to call the attention of the Committee to the proceedings of a celebrated court martial, which took place a few years ago, which created a great sensation at the time, and to which the hon. and learned Member for Oxford (Sir William Harcourt) was probably much indebted for the great reputation he now enjoyed—he alluded to the case of Colonel Crawley. On that occasion the hon. and learned Member made of one of the most powerful speeches to the court that he (Mr. Otway) had ever read, and he believed it was entirely owing to the speech that the officer was acquitted.
§ MR. OTWAYwould be glad to hear a reply on this question from the Judge Advocate General, for it was desirable that the Committee should have the advantage of the right hon. and learned Gentleman's experience and legal knowledge. All that he desired was that a soldier should have precisely the same facilities with regard to his defence as an officer. If that were so already he was content; but if it were true that in the case of Colonel Crawley the hon. 526 and learned Member for Oxford wrote the speech, the prisoner reading it, that was an advantage which, so far as he could understand, a soldier did not enjoy. Until the hon. and gallant Member for Ayrshire (Colonel Alexander) read the Queen's Regulation a short time ago, he was not aware that it was possible for a soldier to have a professional adviser at all, and he certainly was not aware of an instance in which the power had been exercised. He considered that the new clause proposed by the hon. Member for Meath should be accepted by the Committee, subject to the restriction suggested by the hon. Baronet the Member for Chelsea (Sir Charles W. Dilke)—namely, that it should not apply to regimental courts martial, but to general and district courts.
§ COLONEL STANLEYdisliked demurring to an Amendment, some part of which he was not indisposed to agree to, but which, on the other hand, he did not quite see his way to, because he was in doubt as to how it would work. It was all very well for hon. Gentlemen to propose clauses in support of which plausible arguments could be advanced; but when it became a question how the clause would work, that was a somewhat different matter. The question, in the present case, was not whether a prisoner should be entitled to employ a legal adviser, but whether, under the guise of allowing the employment of a legal adviser, they should entirely alter the procedure of courts martial. It was necessary to be perfectly clear on this subject. If by a "legal adviser conducting the defence of the prisoner," was meant that counsel should be allowed to address the court, and to act precisely the same as in a civil trial, he confessed that he could hardly assent to that without taking further advice. The acceptance of the clause, in its present form, would involve the complete reversal of what had been the mode of procedure at courts martial from time immemorial. It must also be borne in mind that courts martial differed materially from ordinary Courts of Law in this respect—that, whereas a decision in a Court of Law was final, in courts martial, other than regimental, the proceedings had to be forwarded home for examination and sometimes for revision. On that account, therefore, the practice of putting questions in writing was not, 527 perhaps, quite so foolish as it at first sight appeared. Of course, where shorthand writers were available they might be employed under reasonable restrictions, but that clearly did not obtain everywhere; and to lay down a rule of this sort in an Act of Parliament would not only be fallacious in itself, but it would be found difficult in working. He had no objection, in principle, to a prisoner being represented by a legal adviser; but he did not think it right, subject to whatever further advice he might receive, that the defence of a prisoner should be entirely conducted by counsel—that was to say, that counsel should be able to cross-examine witnesses and make speeches as in an ordinary court. Above all things, it ought to be borne in mind that it was not always certain that the best legal adviser would be obtained; and it was necessary that a person not of a military character appearing before the court should not be put into such a position as to be able, by his superior legal knowledge, to place the court on the horns of a dilemma, and thus, probably, bring about the failure of justice. In most cases the procedure was very simple; and it would be worse than useless to lay down in an Act of Parliament that counsel should be employed. On the whole, therefore, he was afraid that, unless the new clause could be considerably amended, it would be his duty to demur to it.
§ SIR HENRY JAMESwas sorry to be obliged again to trouble the Committee; but he felt called upon to make some remarks in reply to the objection, that by accepting the Amendment they would be altering the procedure of courts martial. That, in his opinion, was a very small objection, especially after they had altered the constitution of the Army itself, having made it a Parliamentary Army, instead of one governed exclusively by the Prerogative of the Crown. To say that justice was not to be done because it would be inconvenient to those who had the conduct of courts martial was a plea which he, for one, could not accept. Under the Bill, civilians were, for the first time, rendered liable to trial by court martial for 26 offences, the punishment for which might be death; and he failed to see why, under such circumstances, the proceedings should not be conducted on the 528 same principle as in ordinary Courts of Law. It could not be denied that putting questions in writing was a very slow process; and the mode in which a prisoner was obliged to address the court in defence was repugnant to one's sense of justice. He saw no particular objection to the exclusion of regimental courts martial from the clause; for if the clause applied to general and district courts there would be a guarantee that prisoners would have the power of being legally represented.
MR. ASSHETON CROSSsaid, it seemed to him that the contention on the other side was for the shadow, and not the substance, which had been given by the Queen's Regulations. He hoped they would not fight about a shadow. If every single word was to be taken down, and every answer was to be taken down, of course they must have a shorthand writer. That they had not got, and such a proceeding was, indeed, utterly unheard of. As to the appearance of a counsel, he wished to know by whom counsel would be controlled? The military court had no control over him; there was no such provision in the clause. He thought the proposal was a dangerous one. They would have this danger, and it was one which should be considered in the interest of the prisoner. If they were going to have counsel for the prisoner—if they were going to put this enactment in the Bill—they would have a practice of engaging counsel for the prosecution springing up. That, again, they had not got. It was quite clear that if there was counsel for the prisoner there would be a prosecuting counsel as well; and they would be much worse under this regulation than they were at present. Therefore, he hoped the Committee would hesitate before passing this suggestion. The present position of soldiers before the law was, he had no hesitation in saying, better than it would be under the proposal now before the Committee.
§ MR. MUNTZsaid, he did not deny that there were considerable difficulties in this case; but there was one question he should like to ask of the right hon. Gentleman, and that was, why a soldier was to be treated differently on his trial from any other person? Was a soldier undeserving of those 529 securities which, were offered to every other person? They had heard a great deal of the difficulty of controlling counsel. Well, but they found no difficulty in magistrates' courts. There was not an Assize Court in England where, if a prisoner was about to be tried for his life, and had no counsel, the Judge would not at once appoint a counsel to defend the party charged? That being the case, was it not an excessive hardship that a soldier should be treated differently? They ought to allow the soldier on his trial the right of having a counsel to advise him. He had heard nothing in the remarks of the right hon. Gentlemen opposite which met the objections of the hon. and learned Gentleman the Member for Taunton (Sir Henry James); and if the hon. Member for Meath went to a Division he (Mr. Muntz) would vote with him.
§ COLONEL ALEXANDERreferred to the trials of the military prisoners in Ireland. In those cases, for some reason or other, the counsel for the prisoners withdrew from the court, and the trial was postponed until half-past 10 the following morning, to enable the prisoners to have the assistance of counsel. In the case of the trial of Kiley, the same legal adviser again withdrew, and the court announced to the prisoner that it would give him to the next day to employ other counsel, when the court would proceed with the trial, whether the prisoner obtained other counsel or not. It was quite clear there was no difficulty in prisoners obtaining the services of counsel. With regard to the case of Colonel Crawley, the defence, which was prepared, was read badly by Colonel Crawley himself, and the effect wholly spoiled.
MR. COLEsaid, he was strongly of opinion that military prisoners should have the advantages of having counsel. The Secretary of State for the Home Department said that they had the substance, and that they were only fighting for a shadow; but he contended, on the other hand, that they were fighting for the substance, nothing but the shadow having been left to them. He challenged the Home Secretary on his own ground.
§ MR. PARNELLonly rose to say that if the Committee consented to read the clause he should be happy to adopt the 530 Amendments suggested by the hon. Member for Chelsea (Sir Charles W. Dilke).
§ Question put.
§ The Committee divided:—Ayes 87; Noes 186: Majority 99.—(Div. List, No. 170.)
§ SIR GEORGE CAMPBELLhad on the Paper an Amendment in page 39, after Clause 72, to insert the following clause:—
§ (Punishment of offences not actually seen by provost marshal.)
§
For the punishment of the offences described in section seventy-two of this Act, which are not actually seen by the provost marshal, or which require a more severe punishment than the provost marshal is authorised to inflict, it shall be lawful for the officer commanding any detachment or portion of troops on active service to convene a field court martial, to consist of not less than two officers, and such field court martial may try the person accused of such offence in a summary way, the charge and finding being recorded and an abstract of the evidence being taken in brief, and such field court martial shall be competent to award any punishment which might be awarded by an ordinary regimental court martial;
§ but he explained that as the views here embodied had been practically adopted he would not move it. He had also a further clause, after Clause 82, as follows:—
§ (Continuance of service of soldiers in reserve.)
§
A soldier of the reserve who has completed or will within one year complete the period for which he was enlisted may give notice to the officer commanding the brigade depot to which he is attached of his desire to continue in Her Majesty's service in the reserve forces, and if that officer considers that he is qualified for farther service, and the competent military authority approve, he may be continued as a soldier of the reserve forces in the same manner in all respects as if his term of service were still unexpired, except that he may claim his discharge at the expiration of any period of three months after he has given notice of his wish to be discharged.
§ It was not his intention now to proceed with this clause, seeing that the right hon. Gentleman opposite assured him that the existing law effected the object which he desired.
§ MR. PARNELLsaid, his next Amendment was, in page 47, after Clause 86, to insert the following clause:—
§ (If a discharged soldier or his wife or child becomes chargeable on rates, guardians may recover coats from the War Office.)
§
If a person who has been a soldier of the regular forces, or his wife or child, becomes
531
chargeable on the rates for the relief of the poor in the place at which he has taken up his residence, within a period of two years after discharge or transfer, the board of guardians of the union in which he or they become so chargeable, or of any other union to which he or they may have been removed under the laws regulating the removal of paupers, or in which he or they may have subsequently taken up their residence within the aforesaid period of two years, shall be entitled to receive from the War Office the cost which from time to time may be incurred by the union for the support of such person or persons.
§ He did not propose to proceed with this clause, because, yesterday, they decided a question similar to this. He begged, therefore, to withdraw the clause.
§ Clause, by leave, withdrawn.
§ MR. E. JENKINSsaid, he now moved to insert a clause which was intended to have the same effect as that string of clauses which, unfortunately, he was not here to move, and with regard to which he must apologize to the Committee for not moving. On page 67, after Clause 123, he begged to move to insert the following clause:—
§ (Power of Judge Advocate General to revise sentence.)
§
No finding or sentence of a court martial and no forfeiture or punishment shall be valid in any respect in which the Judge Advocate General shall determine that such finding, sentence, forfeiture, or punishment are not in conformity with law.
§ In moving this clause, he wished to raise an important point, and he should be glad if the right hon. and learned Gentleman would give his attention to the subject, if possible. He thought it would be a matter of satisfaction to the Committee, and would save time, if the right hon. Gentleman would state to the Committee what he proposed to do with regard to the point in the clause. The question came before the Committee thus. No one who had carefully read the evidence which was given before the Courts Martial Commission could fail to see that there was a certain dissatisfaction with the present procedure. "The ramrod case "had been cited as an instance of the injustice which might be carried on, owing to want of power in the Office of Judge Advocate General. In the case to which he referred, the Judge Advocate General declared that the proceedings were illegal, and yet the sentence was carried out, and justice was refused in the Office of the Secretary of 532 State for War. Now, the question was this—what was the use of the Judge Advocate General? He confessed that the more he studied the question the more difficult he found it to give an answer. The Judge Advocate General was not in the Privy Council—he was not a lawyer—in fact, he had no legal knowledge whatever. This was a state of things which, one would think, could not exist in any civilized country. Now, he was not alluding to any person in particular. It was true that, from time to time, that Office had been filled by men eminent as politicians; but, on the other hand, it was notorious in that House that it had again and again been filled by persons who were not eminent lawyers. That they ought to be lawyers was clear, because they had the evidence of the present occupant of that Office that the finding of some 8,000 courts martial a-year passed under his supervision, and were subjected to legal scrutiny. It was an evidence of the diligence of the present holder of the Office that he was able to say that was the case. What he was aiming at, and what he desired to secure from the Government, was this—that the Office should be placed upon such a footing as that it should be impossible henceforth that it should be made a sinecure. He knew that it was very unpleasant to say, or to imply, what he was implying at that moment; but, nevertheless, he did say that it was an anomaly that there should exist in this country an Office, paid so highly as that of the Judge Advocate General, which should appear to be a mere sinecure. It was so, undoubtedly, at the present moment. He now passed from that part of the subject, and came to the practical portion of his Motion. And he asked the right hon. and gallant Gentleman the Secretary of State for War what objection there could be to framing a set of Regulations which should insure—of course, always supposing that the Judge Advocate General was a person who was capable of giving an opinion which was worth having—that the whole of the proceedings of the various courts martial throughout the country should be sent to his Office for revision? The Committee had passed a very important Resolution just now. It had denied all persons before courts martial the right of securing the assistance of a counsel who 533 should proceed before the court martial, as he would do in civil cases. He, therefore, asked the right hon. and gallant Gentleman whether the effect of the decision of the Committee was not this—that they were driven back upon such proposals as those which were made by the hon. and learned Member for Oxford (Sir William Harcourt) before the Courts Martial Committee? He alluded to them just now, and he did so again. One proposal was that there should be present at every court martial a legal assessor, not necessarily a barrister, but a person who had studied military law, and was competent to give an opinion on that law. Whether the presence of such a person at regimental courts martial would be advisable he did not say; but at district and general courts martial there should be present some person who was competent to give an opinion on military law. It was a question, however, whether they might not have another set of officers trained up in military law, who might be present at important regimental courts martial; and he did not think it would be difficult to get officers to study military law, provided that a certain inducement was offered them. But, at all events, with reference to the present proposition—which was only one of a series that he would wish to submit to the Committee—he would point out that it was absolutely essential that the Office of the Judge Advocate General should be strengthened. He would ask that, instead of his being what he understood he was at present, simply a person to whom the cases were referred, and who made reports to the Commander-in-Chief, which he might or might not follow, in his hands should be placed the absolute decision with regard to the correctness or incorrectness, from a legal point of view, of the proceedings which were submitted to him. He wanted to know whether the right hon. and gallant Gentleman was willing to accept that principle—that the decision of the Judge Advocate General, with regard to the legality of the proceedings of courts martial, should be taken to be absolutely and distinctly irrevocable? He did not wish to detain the Committee any longer; and if he should succeed in eliciting from the right hon. and gallant Gentleman an expression of opinion on this point which was at all satis- 534 factory he would not press the Amendment.
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)remarked, that the hon. Gentleman had not told the Committee what the effect of the change which he proposed would be. At present, the Judge Advocate General was only an adviser; and the effect of this proposal would be to make him an absolute Judge, whose conclusions would be absolutely final. It seemed to him that that was far too serious a change to introduce here. It would be a total alteration of what the military law was; and the effect of it, so far from being in aid of the persons on whose behalf he seemed to speak, would be against them. The sentence, at all times, was now a thing which, as he understood, the proper authorities might, at any time, remit; but if the hon. Member's proposition was carried, there was an absolute, inexorable, and certain judgment arrived at by the person who was, at present, simply the Law Officer of the military authorities. Was that a desirable alteration? He submitted to the hon. Member himself that it was hardly a desirable thing to do.
§ MR. RYLANDSsaid, the hon. and learned Solicitor General, in his remarks, would lead the Committee to believe that the War Office, in dealing with the decisions of courts martial, received the advice of the Law Officers of the Crown. ["No, no!"]
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)explained, that he had only suggested that his right hon. and learned Friend the Judge Advocate General was to the military authorities what the Law Officers of the Crown were to the Government.
§ MR. RYLANDSsaid, it came, then, practically, to this—that the decisions of courts martial were subject simply to the review of the War Office. Now, the hon. and learned Solicitor General seemed to think that it would be a very great revolution to give the Judge Advocate General the power of a Judge. No doubt, it would be a very great change upon the present system; but it was one which was recommended by authorities who gave evidence before the Committee which sat last year. The Deputy Judge Advocate General—a gentleman who had probably more experience in this matter than any other 535 man at present engaged in the Public Service—expressed a decided opinion in favour of such a power being given to the Judge Advocate General as that which was proposed by his hon. Friend the Member for Dundee (Mr. E. Jenkins). Therefore, when they were told they were going outside what might naturally be expected in a Bill of this kind, he entirely disputed that statement. They were only dealing with a matter which came within the competency of the Committee, to which the subject of the regulation and discipline of the Army, the Mutiny Acts, and the Articles of War were referred. It was only fair to the large number of soldiers who were brought under the control and judgment of courts martial that they should have at the central authority a power which would review irregularities, or correct any improper decisions on the part of those courts martial. He would not trouble the Committee by reading the evidence. ["Hear, hear!"] Hon. Gentlemen said "Hear, hear!" but he would remind them that he was now pleading for justice for a large number of men in the Army who, by reason of ignorance on the part of courts martial, might be treated in a manner not just. He did not say that courts martial would willingly do an injustice; but there could be no doubt whatever that they frequently did an injustice in their findings; and what he was pleading for now was that there should be at the head of the Judge Advocate General's Department a public official who should, in fact, have the position, and exercise the power, of a Judge. He knew what would follow from the adoption of such a proposal as that contained in his hon. Friend's clause. They would have to select for that appointment a man of high judicial character, to whom could be referred, with perfect confidence, these responsible duties. The House would then vote the salary of that learned Gentleman with perfect satisfaction; because they would know that, in appointing as Judge Advocate General a man of that high character, position, and experience, they would give a guarantee to the entire Army that this important Office would be fully and properly administered. If they were to continue to place in that Office a gentleman, not because of any judicial acquirements which he possessed, but 536 simply because it suited the political convenience of one Party or another, then they were degrading and prostituting what ought to be a most important and useful Office in connection with the British Army. He entirely repudiated, in the remarks he was making, any intention to be personal. It was not a question of the present occupant. They had had, again and again, Gentlemen appointed to this Office simply on the ground of political convenience. He desired to protest against that. If different considerations governed the appointment, he should say that the Office was one that ought to be continued. But to pay £2,000 a-year, and not to get an absolute return in official competency and work, was to convert the Office into a farce. He wished to remind the Committee that the Office was left vacant for several months entirely for the political convenience of the late Government; and during that period no inconvenience resulted, the duties being performed by the permanent officials. He thought the Committee and the Government should be prepared to deal with this matter in connection with this Bill, as it was for the interest of the Army that the Office should be placed upon a permanent and more satisfactory footing.
§ COLONEL STANLEYsaid, that, as he had been so personally referred to in connection with this matter, he hoped the Committee might allow him to say a few words, although he would only speak in very general terms. With regard to the clause before the Committee, he thought his hon. and learned Friend the Solicitor General had already pointed out what were the objections to it. But the hon. Gentleman the Member for Dundee (Mr. E. Jenkins) had spoken of this Office rather more strongly in connection with other clauses which he had down on the Paper, and had pressed him for his opinion. He felt somewhat in a difficulty; because he did not think, to begin with, that such a subject found its place very conveniently in the Bill, relating, as it did, to an entire change in the conditions of a high Office. However, as the hon. Gentleman had asked for his opinion, he was bound to give, so far as he could, his personal opinion for what it was worth. It would be understood, he hoped, that in all these matters they spoke impersonally, and 537 entirely in relation to the Office. As to what had been said about making the Judge Advocate General a Judge, he agreed with his hon. and learned Friend the Solicitor General that there would be a great deal of difficulty in reversing the traditions of that Office. But, what was more, he was not at all sure that, in itself, that would be entirely a change for the better; because as long as the Judge Advocate General continued as a Law Adviser to the military authorities, it seemed to him that the placing him in the position of a Judge would be very inconsistent with the position of responsibility which the Secretary of State, as representative of the military authority, had to assume in that House. It must be borne in mind that the Judge Advocate General's Office was one of greater prominence even than it was at the present time under a former state of things, in which the Secretary at War was not a Secretary of State directly responsible for the whole administration of the War Department. The Judge Advocate General represented, as he might say, the civil side of questions connected with military law in that House, at a time when there was no Secretary of State, and the Secretary at War discharged somewhat different functions. He then was, as it were, civil representative in respect of military law, and the civil adviser of the Commander-in-Chief, and, through him, of the Sovereign. With the appointment of Secretary of State, that position became somewhat changed. Speaking for himself, he must say that he should hail with pleasure any proposal which he thought would strengthen the Office of his right hon. and learned Friend. He should be glad to see the legal element strengthened, if it was not at present strong enough; and he thought his right hon. and learned Friend himself had shown his appreciation of that feeling, inasmuch as one of the officers whom he had lately appointed to the position of Judge Advocate General was a barrister. Then, there was another point raised as to whether it should be a permanent Office in the sense that a Judge's office was permanent, or whether it should be an Office the occupant of which was liable to change from time to time. He must point out that if they were to make such a change in the Office as to place it on the same tenure as that pf the Judges, they would entirely reverse 538 the whole traditions of the Office; and the person so appointed could no longer act, as at present, as the Law Adviser on military matters of the Secretary of State. He would be placed in an entirely different position. It seemed to him that if the Judge Advocate General was to be the adviser of the Secretary of State, and to act with him, it became almost a matter of necessity that the Office should be subjected to changes as at the present time. He hoped that the hon. Gentleman would recognize the difficulties which were before them in this matter, and would not press the clause. He would venture to make a further appeal to him not to press the other matters to which he had referred upon the attention of the Committee at the present time; but to allow him an opportunity of taking them into practical consideration, in conjunction with his right hon. and learned Friend the Judge Advocate General.
§ MR. E. JENKINSsaid, that although, undoubtedly, the discussion had extended over rather a wide space, yet the question immediately before the Committee was simply an alteration in the law as it at present existed. He wanted to know whether it was true that any finding or sentence was now held to be valid in any respect in which the Judge Advocate General had said it was not in conformity with law? The hon. and learned Solicitor General—he would forgive him for saying so, because he did not wish to imply any failure on his part to apprehend the ordinary meaning of language—had given a wider interpretation to this clause than he (Mr. E. Jenkins) intended. He thought that if the hon. and learned Gentleman looked at it, he would see that it simply asserted in the Bill what was, practically, the case at present. His object was to introduce into this Bill some recognition, on the part of Parliament, of the responsible Office of Judge Advocate General; and if this were granted, he then might listen to the appeal of the right hon. and gallant Gentleman. So far as the clause which he had proposed was concerned, he did not see, either from the remarks of the hon. and. learned Solicitor General, or those of the right hon. and gallant Gentleman, why it should not be passed by the Committee.
§ Clause negatived.
539§ MR. PARNELLsaid, he had been accidentally shut out, and, therefore, he was unable to return to the House in time to take up his next clause. He, however, begged now to move, in page 67, after Clause 126, to insert the following clause:—
§ (Commentary on proceedings during trial.)
§
The published commentary by any person on the proceedings of a court martial during the trial or before the finding of the verdict and sentence shall be held to be contempt of such court.
§ He did not know whether this clause was so clearly drawn that it expressed his meaning; but he would tell the Committee what it was he wished to do. He wished that proceedings before courts martial should be exempted from commentary, in the same way that proceedings in civil courts were exempted from comment; so that the case of the accused person should not be prejudiced by remarks in the Press. At present, when any ease was being tried by a court martial, all persons passed judgment on it, and very often this was done with the utmost freedom, and the case was, practically, withdrawn from the court, and became a mere matter of discussion and decision outside. He thought this was a point of considerable weakness in the military procedure, which ought to be remedied by the present Act; and it was with the intention of remedying this weakness that he brought forward this clause. It might be that the clause did not fully express his meaning. It would be quite open to the hon. and learned Attorney General or Solicitor General to amend it in such a way as to make it answer the purpose.
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)thought that the Amendment, as at present moved by the hon. Gentleman, was too wide, and would comprehend more than he intended. He thought that the introduction of some words modifying the clause would bring it within the range of the Bill, and so that his right hon. and gallant Friend might accept it
§ MR. PARNELLsaid, he would be willing to withdraw the clause; but what he would suggest was that the hon. and learned Gentleman would kindly take the trouble to draft a clause himself.
§ SIR HENRY JAMESsaid, that he had no doubt whatever that his hon. 540 and learned Friend would take that course.
§ Amendment, by leave, withdrawn.
§ MR. PARNELLmoved to insert the following clause:—
§ (Prisons in India and Colonies.)
§
No soldiers shall be confined, in prisons other than military prisons, in India and the Colonies where the rules for the government and management of such prisons differ from those made by the Governor General of India and a Secretary of State in the case of India and the Colonies respectively.
§ He should be willing to insert an Amendment in this clause if the Government agreed in principle to this—that no soldier should be confined longer than was absolutely necessary in other than military prisons.
§ Clause agreed to.
§ MR. PARNELLthen moved to amend the clause by inserting, after the word "confined,"the words "longer than is absolutely necessary."
§ Amendment agreed to.
§ Clause, as amended, added to the Bill.
§ MR. PARNELLmoved, in page 69, after Clause 131, to insert the following clause:—
§ (Duration of penal diet.)
§
No prisoner shall be sentenced to more than twenty-four hours' penal diet for breach of prison discipline without the order of an authority independent of the governor of the prison.
§ He would remind the Committee that the Home Secretary held that, in spite of the provisions of the Prisons Act of 1877, a gaoler was still entitled to confine a prisoner in his cell for three days for a breach of discipline. Now, he (Mr. Parnell) had, in Committee on that Bill of 1877, introduced an Amendment that solitary confinement in the punishment cell by order of the gaoler should be confined to 24 hours. He intended, by that clause, to prohibit the gaoler from sentencing a prisoner for breach of discipline to more than 24 hours' imprisonment. Unfortunately, it appeared, according to the interpretation put on that clause, that there was nothing to prevent a gaoler from sentencing a prisoner to more than 24 hours' solitary confinement, provided it was in his own cell, and not in the punishment cell. This sentence of three days' confinement in the prisoner's own cell could 541 be accompanied by penal diet—bread and water. The Committee would bear in mind the distinction which he made between the prisoner's own cell and the punishment cell. Now, the punishment cells were hardly ever used; they were not used because it was found that they did not comply with the provisions of the Act of 1865. It was provided by that Act that the prison authorities should provide—that was, build—a suitable punishment cell. Well, the cells were built; but they were found not suited for the purpose. They were dark, badly-ventilated, and, in many cases, damp, and altogether such cruel places that, instead of confining prisoners in these penal cells, the practice grew up of confining them in their own cells. Now, his contention was that if they confined the prisoner upon bread and water in his own cell, that cell became a punishment cell, and, therefore, that it should be included in the sections of the Prisons' Act of 1877. But the Home Secretary took another view. He considered, as he had said, that the gaolers had power under that Act to confine prisoners in their own cells for more than 24 hours. Now, a great deal of mischief had resulted from this practice of confining prisoners in their own cells without the orders of Visiting Justices, or some independent authority. He objected altogether to gaolers having the power of confining a prisoner in a cell which was,. for all practical purposes, a punishment cell for more than 24 hours. The whole experience that they had had of prison punishment and prison discipline showed that gaolers could not be intrusted with this indiscriminate power of ordinary bread and water diet to prisoners, and solitary confinement for breach of discipline; and that it was absolutely necessary to limit the power of the gaolers in some way or another. His attention was first drawn to this subject by the case of the political prisoners. He found it was a common practice to give men who bad been sentenced for political offences terms of solitary confinement on penal diet for trifling breaches of discipline. This terrible punishment was inflicted on them at short intervals. Thus a man would have a punishment on penal diet, and he would leave the cell, and in a short time he would have to return to it again for another trifling breach of discipline. The result of this course was 542 soon apparent. It had the strongest and worst effect upon the health of the prisoner, which speedily broke down under it. They had, for instance, the other day, the case of the prisoner Nolan, who died in Clerkenwell, where the gaoler had indiscriminate power of sentencing prisoners to this penal diet, resulting in death in this case. The Coroner's Jury testified that the prisoner Nolan died in consequence of the treatment he received in prison. That treatment consisted of repeated punishments in the shape of confinements to his cell on bread and water diet. He would illustrate how a man might bring himself under this punishment, and how difficult—in fact, how utterly impossible, it was for him to avoid being brought under solitary confinement and penal diet. The new comer—a prisoner, that was, who had not been convicted before—if he could not at once pick his 3 lbs. of oakum, he was ordered to this solitary confinement and penal diet; and the result was that, weakened and reduced, he would be still less able to complete that task than when he first entered on it. Now, 3 lbs. of oakum picking was a very severe task; but to old hands at the work it was easily got over, so that the effect was this. The young soldier who had committed some not very serious offence in his regiment would find that the hardened criminal, through his greater proficiency in oakum picking, would gain all the advantages of the situation, while he was relegated to the terrible ordeal of penal diet. Now, what was this penal diet? It was 16 ozs. of bread per day, with as much water as a man could drink. The man would eat his 16 ozs. at once, and this would be all he would have for 24 hours. What would the effect of this be at the end of three days? A man would be much less able to go through the task; and simply because he was unable to complete that task, and though he might have no desire whatever to shirk his work, he would fail and be punished. He would fail simply because it was physically impossible for him to perform the task; and if he failed he was at once relegated to bread and water, and so gradually he was worn down, and his health completely undermined. The prisoner who entered gaol, under the circumstances which usually accompanied young soldiers, would speedily be re- 543 duced physically; and if he failed at first, which was almost certain, he was less able to succeed. Of course, under the penal ordeal which was a constant system of punishment, punishment went on until the prisoner was absolutely rendered physically incapable. This fact was shown so conclusively in many of the cases he had gone into that he did wish the Committee to come to see the question from his point of view. He believed it would not be tolerated if the Committee fully went into the circumstances. The practice was a most pernicious one, and he hoped the Committee would put a stop to it. The practice of repeatedly punishing prisoners was a cruel and stupid one. He wished the power abolished of sentencing a man to more than 24 hours. He wanted the gaolers entirely deprived of the power which they now possessed, and that power handed over to independent authorities.
MR. ASSHETON CROSSsaid, he certainly sympathized with the object the hon. Member had in view. He understood the hon. Member to wish to prevent what he called the cruel punishment of prisoners in gaol, charged with breaches of prison rules; but when persons were guilty of breaches of discipline it was really very hard to know what was to be done with them. What position were they in now? Some persons objected to prisoners being flogged; others objected to prisoners being put to hard work; others objected to their being put on penal diet. It was difficult to know what to do to please everybody. The hon. Member was wrong in saying that he had paid more attention to this subject than anyone else, for he could assure the hon. Gentleman that he had given very great attention to this subject. By the rules framed in the Prisons Act of 1877, the gaoler was not allowed to inflict on the prisoner confinement to his cell beyond a certain specified period. It had been pressed upon him by a body of Visiting Justices, who were most strongly opposed to the Act of 1877, that the rules which he had made on that subject unduly weakened the hands of the governor of the gaol, and that prisoners who committed breaches of prison discipline must be punished at once, if discipline was to be maintained in the prison. With regard to the case of Nolan, he must remind the Committee 544 that there was a most independent inquiry in that case, and that those who conducted that inquiry came to an entirely different conclusion from that arrived at by the jury. So far as the next Amendment of the hon. Member was concerned—he meant the classification of prisoners—he had no objection whatever to it, but had always been of opinion that such classification should be made; and a Committee had already been appointed by the War Office in connection with the subject. He hoped the Committee would not enter at that period, in any lengthened way, on a discussion of that subject.
§ MR. O'SULLIVANsaid, he thought this was a most important question, and he hoped the Committee would bear in mind that these gaolers were not men who ought to be trusted with such enormous powers as were given to them. He had known cases where gaolers had punished prisoners with very great severity. As a general rule, the gaolers were a hardened class that had to do with a very bad class of men; and so, in time, they became hardened to the punishment, which, with the greatest ease, they were ready to inflict upon those placed under their power. He had himself moved, some six weeks ago, for a Return showing the punishments inflicted, in one particular gaol by a particular individual, and showing, also, the number of persons who had been driven mad by the punishments inflicted by that particular gaoler. This case occurred in his own county; and it would show to the House what had been done by the cruelty and hardships inflicted on prisoners by this gaoler. He thought it was very wrong to give the gaoler power to confine a man for 72 hours on bread and water. It was said, what were they to do with prisoners, then, who committed these breaches of discipline? He said that the Amendment gave power to give 24 hours' penal diet and solitary confinement; and he thought that was quite sufficient power to place in the hands of any man. He could not see any objection to this Amendment. He regretted, exceedingly, that he had not his Return now, to place before the Committee the result of the treatment given in gaols by the gaolers. He trusted that the Government would not refuse to accede to this humane clause.
§ MR. PARNELLsaid, he did not think there would be any use in dividing the Committee; but he should return to this question, either on the Estimates or at any other possible opportunity, until he had brought the Home Secretary round to his own way of thinking. He had looked into the Prisons Acts of 1865 and 1867, and in none of the sections was there any authority to a gaoler to confine a prisoner in his own cell for three days. The Act authorized a gaoler to confine a prisoner in a penal cell for three days; but there had never been the power to confine a prisoner in his own cell. He begged leave to withdraw the clause.
§ Clause, by leave, withdrawn.
§ MR. PARNELLmoved, in page 69, after Clause 131, to insert the following clause:—
§ (Classification of prisoners.)
§
Whereas it is expedient that a clear difference should be made between the treatment of prisoners convicted of breaches of discipline and the treatment of prisoners convicted of offences of an immoral, dishonest, shameful, or criminal character, a Secretary of State shall, from time to time, make rules for the classification and treatment of such prisoners.
§ Clause agreed to.
§ MAJOR O'BEIRNEmoved, in page 83, after Clause 150, to insert the following clause:—
§ (Purchase-money not to be forfeited unless court so directs.)
§
An officer who joined the Army before the abolition of purchase, when sentenced by court martial to be cashiered or dismissed the Service, shall not forfeit any portion of any sum of money he may be entitled to receive from the Army Purchase Commissioners, unless the sentence of the court otherwise directs.
§ The hon. and gallant Gentleman said, that he had put this Amendment upon the Paper because there were two classes of officers now in the Army—the purchase officer and the non-purchase officer. At the present time the purchase officers numbered 2,624, or about one-half of the total number of competent officers in the Army. If a purchase officer were tried by a court martial, he was not only sentenced to be cashiered, but he was also made to forfeit the purchase money of his commission. The value of that commission might be from £1,000 to £8,400. This Bill bore very unfairly upon purchase officers; no soldier could 546 be tried twice for the same offence; but the purchase officers were worse off than soldiers, for they were subject to two penalties. When Lord Cardwell introduced into the House the measure abolishing purchase, he stated that the purchase officers would be placed in no worse position by the abolition of purchase than they were in before. But they were now in a much worse position than before, for they were punished twice for the same offence. He did not see how the right hon. and gallant Gentleman could refuse to accept his Amendment.
§ New Clause (Major O'Beirne) brought up, and read the first time.
§ Motion made, and Question proposed, "That the Clause be read a second time."
§ COLONEL STANLEYdid not think that the Committee would be justified in assenting to the Amendment, for it would produce an entire change in the position of officers, and he did not think that the change ought to be made. At the present time, an officer who had purchased his commission had repaid to him what he had invested by the advantage he obtained in reaching a superior rank before other officers would do so. He had paid to him the regulation, or over-regulation, value of his commission for the advantages he had received; and it seemed to him that it would be a strongly disadvantageous step if they were to say that such officers, although cashiered or dismissed the Service, should be repaid previously. It would be placing the non-purchase officer in a very disadvantageous position. What was laid down by Lord Cardwell was that the purchase officers should be in as good a position after the passing of the Act as they were before. When an officer was cashiered or dismissed it was always known that his commission was not saleable. No officer would have given, or would have been allowed to give, any money for that commission, and it would have been allowed to go to the next senior officer without purchase. So far, therefore, as concerned the position of an officer sentenced to be cashiered or dismissed, he would stand, since the abolition of purchase, as well as before, disentitled to receive back any portion of his purchase money. The hon. and gallant 547 Member for Brighton (General Shute) had put a question to him with regard to this matter; and, in reply, he had stated that if a purchase officer were cashiered or dismissed the sentence ipso facto caused forfeiture of his purchase money. He did not think it right that a purchase officer should be placed in a better position than a non-purchase officer. The money he had paid had been for the advantages which he had enjoyed, and for those reasons he could not accept the Amendment.
CAPTAIN MILNE-HOMEsaid, that the clause proposed by the hon. and gallant Member for Leitrim was almost the same as one that he proposed at an earlier stage of the Bill, but which he withdrew on an appeal from the right hon. and gallant Gentleman the Secretary of State for War. His Amendment received considerable support from all sides of the House, and it was supported by his hon. and gallant Friend, the Member for East Aberdeenshire (Sir Alexander Gordon), and the hon. and gallant Member for Brighton (General Shute). Subsequently, a question was asked with regard to the matter, and it was stated by the Secretary of State for War that Her Majesty had power to direct the payment of the money to which he would otherwise be entitled from the Army Purchase Commissioners to any purchase officer who had been sentenced to be cashiered or dismissed the Service by court martial. It was, however, pointed out that when sentenced to be dismissed or cashiered a purchase officer ipso facto forfeited the money to which he would have been entitled had he retired by his own free will. As the hon. and gallant Member for Leitrim had placed this clause upon the Paper, he should give it his support. He thought that it was quite right that it should be within the power of a court martial to direct or to prevent a forfeiture of the purchase money, and not to leave it to be forfeited, as a matter of course. He hoped that the clause would be agreed to.
§ MR. OTWAYdid not think the answer of the right hon. and gallant Gentleman to this Amendment was perfectly satisfactory. He wished to support the Amendment which had been brought forward. How could a purchase and a non-purchase officer be said to be on an equality under the present system? 548 Suppose two officers were tried for the same offence at the same time, a court martial might sentence them both to be cashiered. The one officer, who had paid nothing for his commission, lost nothing; but the purchase officer forfeited a considerable sum of money. He did not think that could be called justice. The right hon. and gallant Gentleman said that an officer who had been so treated had obviously derived some benefit from his purchase. That argument was answered during the discussion on the purchase. He remembered pointing out that the better plan would be for the Government to assess the loss or gain which the officer who had purchased his commission had really obtained. If they took the case of a man who derived no benefit from his purchase, the argument of his right hon. and gallant Friend fell to the ground. What advantage did an ensign obtain over any other officer? Supposing he paid £450 for his commission, and was cashiered, he would lose the money he had invested without having gained any advantage. That seemed to be an unanswerable argument. He must say that it was hardly likely that hon. Gentlemen opposite, who were usually so opposed to their views on that side of the House, should join with them in supporting the Amendment, unless they had a very strong opinion on the matter. Though with every desire to promote the Bill, he felt bound, in justice, to support the Amendment.
§ COLONEL ALEXANDERobserved, that there was a certain difference between purchase and non-purchase officers existing prior to the abolition of purchase in 1871. There were always a certain number of officers who obtained promotion without purchase. The same conditions were in existence before the abolition of purchase as at present with respect to forfeiture of purchase money.
§ GENERAL SHUTEsaid, that there was an unquestionable difference between the position of officers who had purchased and those who had not. A purchase officer had his money, as it were, staked on his life and military conduct—that was to say, it would only be forfeited by death or his being dismissed the Service by the sentence of a court martial, and the advantage he gained by having expended this money was 549 that formerly he obtained his promotion so much the quicker. The man who got his promotion without purchase was years in doing it under the old system; but now the purchase officer had no advantage whatever. Supposing there were two junior captains in one regiment, one of whom was a purchase officer, and the next below him was a non-purchase officer. The non-purchase officer would for the last eight years have obtained promotion quite as quickly as his comrade, who had paid for his position. Supposing, then, that these two captains were cashiered for the same offence, the one having purchased one or two of his earlier steps would, from the fact of his being dismissed the Service, be fined the value of them, whilst the other could not be subjected to any pecuniary penalty. He was in favour of the Amendment to place a discretionary power, as to the forfeiture of purchase money, in the hands of a court martial.
§ MR. HARDCASTLEsaid, that perhaps it might be impertinent for a civilian to address any argument to the Committee upon such a subject as this; but it did appear to him that there was a clear distinction between an officer who had not purchased his commission, but had obtained it by promotion before the abolition of purchase, and a non-purchase officer at the present moment. Before the abolition of purchase an officer who had obtained his commission by promotion was possessed of a saleable article, and was in the same position as an officer who had purchased his commission. Now, a non-purchase officer lost not the value of his commission—for that was no longer saleable—but the purchase officer, who was entitled to compensation for the value of his commission, would lose that as well as the commission, and thus suffered a double punishment.
§ MAJOR O'BEIRNEremarked, that the right hon. and gallant Gentleman the Secretary of State for War had told them nothing of the disadvantages to which purchase officers had been subjected since the abolition of purchase. They were now obliged to accept compulsory retirement, and had lost many advantages.
CAPTAIN MILNE-HOMEwished to bring one single point to the notice of the Committee. The Bill which they 550 were now discussing introduced offences, more or less venial, for which officers might be cashiered or dismissed the Service. He was sure that the Committee would support him when he said that this might bear unfairly upon purchase officers.
§ Question put.
§ The Committee divided:—Ayes 45; Noes 135: Majority 90.—(Div. List, No. 171.)
§ MAJOR NOLANsaid, that he had two Amendments on the Paper; he did not propose to move the first, but the second he should move. Clause 152 gave power to move military offenders from one place to another, and to keep them in the place to which they were removed. It appeared to him that that clause, to a certain extent, set a dangerous precedent. Under that clause people might fancy that they would be justified in moving people from one district to another for an ulterior purpose. For instance, under Clause 152 persons might be moved from a district in which there was no martial law to a district where martial law was in force. In Gordon's case, a Member of the Kingston Legislature was taken into a district where martial law existed from one where it was not in force. By that means he was put to death, and the Lord Chief Justice of England had said that that act was something very like murder. He begged to move, after Clause 152, to insert the following clause:—
§ (No person to be subject to any penalties other than those to which he would be liable if tried in the place where offence was committed.)
§
No person shall be subject to any punishment or penalties other than those which could have been inflicted if he had been tried in the place where the offence was committed.
§ Clause agreed to.
§ MAJOR NOLANproposed to insert, after the word "penalties "in the last clause, "under the provisions of this Act."
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ COLONEL STANLEYmoved, in page 109, before First Schedule, insert Schedule— 551
Offences punishable with corporal punishment on active service.All offences under this Act punishable with death.
§ Amendment agreed to.
§ First Schedule agreed to.
§ COLONEL STANLEYmoved, in Schedule 2, page 110, line 26, to leave out all the words after the word "horse."
§ Amendment agreed to.
§ MAJOR NOLANsaid, he had an Amendment on the 2nd Schedule.
§ COLONEL STANLEYsaid, he had moved to leave out the second part of the Schedule, as he intended to place it in an annual Bill.
§ MAJOR NOLANwished to know where they were, as it was impossible to tell what was going on in the Benches where he sat? He wanted to know what course the Government proposed to take with reference to the billeting clauses, as to which he had an Amendment?
THE CHAIRMANsaid, that an Amendment proposed to the 2nd Schedule by the right hon. and gallant Gentleman the Secretary of State for War had been agreed to, and the second part of the 2nd Schedule had been struck out. The Question, then, before the Committee was, that the 2nd Schedule, as amended, should be the 2nd Schedule of the Bill.
§ MAJOR NOLANI wish to point out that the Government have been dodging this in an ingenious way.
THE CHAIRMANsaid, that the hon. Member must see that the expression he had used was one which exceeded the rules of debate.
§ MAJOR NOLANsaid, that he brought forward this question three years ago. Lord Cranbrook then declared that if he did not raise the question the Government would themselves bring it forward. During the course of this Bill he had four times asked the right hon. and gallant Gentleman the Secretary of State for War to appoint a Proprietary Committee. That was the only way of dealing with it. Such a Committee could discuss the whole question of prices. The last time he mentioned it the Secretary of State said it was unnecessary, because it could be moved in the Act which was only to be put in force by another Act. It seemed that 552 now the Government had taken the matter out of this Act with a view of putting it into an annual Act, so that he would not be able to bring it on. The Government were not behaving with ordinary candour over this matter. If a declaration were not made, on the part of the Government, that this matter should go before a Proprietary Committee, he should feel it his duty to propose to report Progress.
§ COLONEL STANLEYsaid, that nothing approaching to an undertaking had been given in this matter. The hon. and gallant Gentleman had raised the question very fairly at the earlier stages of the Bill. They did not then think that it was advisable to put the prices into the Bill, but considered it would be more convenient to place them in the Schedule. He was asked whether it should be made an Instruction to the Committee to consider the question of prices. Ultimately, it was thought better to take these prices from the Schedule of the Annual Bill, so that Parliament might have control over them from time to time. Therefore, he had proposed to strike out the second part of Schedule 2; and, at the proper time, he would move that it should be an Instruction to the Committee to fix the prices.
§ MAJOR NOLANsaid, that the remarks of the right hon. and gallant Gentleman had changed the whole matter.
§ Second Schedule, as amended, agreed to.
§ Schedule 3 agreed to.
§ Schedule 4 agreed to.
§ COLONEL STANLEYmoved, that the new Schedule be read a second time.
§ MR. OTWAYsaid, that as the Schedule dealt with corporal punishment, he should like to know whether the right hon. and gallant Gentleman was prepared to accept his Amendment?
THE CHAIRMANsaid, that the Amendment which stood in the name of the hon. Member for Rochester did not appear to him to be in Order upon the new Schedule. The proposed new Schedule was a list of those offences which, by Clause 44, were punishable with death, and for these the Schedule now before the Committee provided corporal punishment. The hon. Member would 553 be in Order in moving any exception to the list; but he would not now be in Order in moving an Amendment upon the enacting part of the Bill. He wished to point out to the hon. Member that an Amendment to this Schedule must be either by way of exception or addition to.
§ MR. OTWAYwould bow to the decision of the Chair. It appeared to him, however, that his Amendment came within the terms of the ruling.
§ COLONEL STANLEYsaid, that on the suggestion of the right hon. Gentleman the Member for Greenwich (Mr. Gladstone) and the hon. and learned Member for Oxford (Sir William Harcourt), it had been agreed to consider the whole subject of corporal punishment upon Report.
§ MR. OTWAYadmitted that when he put down his Amendment it was for the purpose of raising the question off logging. Now this question had been so much discussed, he did think this Amendment worthy of consideration. Surely it was not desirable that this punishment should be inflicted upon soldiers by their comrades. He had, however, no desire to prolong the discussion.
§ Schedule agreed, to.
§ House resumed.
§ Bill reported; as amended, to be considered upon Thursday, and to be printed. [Bill 245.]
§ COLONEL STANLEYsaid, that arrangements were made by which the Bill would be printed, and would be in the hands of hon. Members to-morrow (Wednesday morning). If it was not possible to deliver the Schedules with the Bill, there would be a second delivery, both at the House and at the residences of hon. Members.