ARMY DISCIPLINE AND REGULATION BILL.— [BILL 88.] (Hansard, 23 June 1879)

§ SIR ALEXANDER GORDON
moved, in page 22, to leave out lines 15 and 16—namely, Any officer authorised by or in pursuance of this Act to convene general and district courts martial, or either of them, also. The hon. and gallant Gentleman said, that his object in moving the Amendment was to endeavour to put the legislation relating to courts martial on the same simple footing upon which it now stood in the existing Mutiny Act, and upon which it had stood since the Mutiny Acts were first passed—the time of William III., 1689. He proposed to omit the two first lines of the clause, in order that it might begin with the words—"Any commanding officer of a rank, not below the rank of captain," and so on. The two first lines of the clause, as it now stood, introduced in the Army an entirely new system, and a practice which had never been thought of before, much less put into operation. By the clause, any officer of superior rank might order a commanding officer of a regiment to assemble a regimental court martial and to submit the proceedings of such court martial to him for confirmation. The practice hitherto ob- 438 served had been that the commanding officer was supreme in his regiment, with regard to the assembling or confirming of a regimental court martial. No one else but the commanding officer of a regiment could assemble a regimental court martial, and he alone could confirm the proceedings—in fact, a regimental court martial had been held to be a purely regimental concern, for which the commanding officer was responsible. But, under the proposed arrangement, any superior officers who were authorized might themselves convene a regimental court martial. This was an entirely new system, and one which he feared would work very injuriously. It was well that the right hon. and gallant Gentleman the Secretary of State for War should inform the Committee on what grounds this very novel procedure had been proposed. The Committee would find that the present system of courts martial was so very simple that he regretted exceedingly that it was proposed to change it. Clause 6 of the existing Mutiny Act enacted power to constitute courts martial. It said— For the purpose of bringing offenders against this Act of Justice Her Majesty may, from time to time, assemble courts martial. That was the authority of Parliament to enable the Crown to assemble courts martial. After giving the Crown power to assemble courts martial, the present Act proceeded in the next section to describe the places where offenders might be tried. It then went on to state the powers of general courts martial; the next section enacted the powers of district courts martial; the next section dealt with the powers of the regimental courts martial, enacting the power for each court martial in the order of importance in which it stood. Now, that was a very simple process; it was a process well understood in the Army, and had existed, as he had already said, for 200 years. It was now proposed to alter that system, and to let the authority of Parliament for convening courts martial apply only to regimental courts martial—to the lesser of the three kinds of such tribunals—while the two other courts martial were to be assembled under an Order emanating from the Sovereign. He would read the words the right hon. and gallant Gentleman the Secretary of State for Warused in explaining this change, when 439 he introduced the Bill in the House. The right hon. and gallant Gentleman said— Passing next to courts martial, we have rearranged the old law, but we have maintained the principle. Now, courts martial will he divided into two classes, in respect of the mode in which they are convened. First of all, courts martial are now convened under the authority of the Statute alone, —that was the Bill they were now discussing— and, secondly, under authority, derived mediately or immediately, by Warrant from the Crown. The first class, under the Act of Parliament, are regimental courts martial and detachment courts martial; secondly, general courts martial and districts courts martial."—[3 Hansard, ccxliii. 1916.] The draft Bill, which was laid before the Select Committee, was drawn on the same principle as the existing Mutiny Act, for it was there seen that under one of the provisions Her Majesty had power to, from time to time, grant a Warrant for courts martial under Royal Sign Manual. It was drawn up on the principle that Parliament should give to the Sovereign the power to hold district and general courts martial; and he could not see for what purpose that simple arrangement had been altered. The Committee would find that Clause 47, as it now stood, dealt with regimental courts martial under the authority of statute; and that the next clause went on to say that— The following rules arc enacted with respect to general courts martial and district courts martial:—(1.) A general court martial shall he convened by Her Majesty, or some officer deriving authority to convene a general court martial immediately or mediately for Her Majesty. In Clause 122 the subject of courts martial was again taken up, for it was there recited— Her Majesty may, by any Warrant or Warrants under her Sign Manual, in such form as Her Majesty may, from time to time direct, from time to time convene, or authorize any qualified officer to convene, a general court martial. They had, therefore, a curious mixture of authority regarding courts martial. He had tried, in every possible way, to see why the subject had been divided into two parts; and now he proposed to omit the two first lines of this clause, in order to let regimental courts martial, to which the clause related, be convened 440 by the commanding officers of regiments. And then he proposed to alter the first two lines of Clause 48, so that authority should be introduced to enable the Sovereign to convene courts martial in the same manner as at present; and then he proposed to omit Clause 47, and put it in the Bill in its proper place—namely, after the clause dealing with district courts martial. By that means they would give the Sovereign power to hold courts martial according to the present system; and they would have general courts martial, district courts martial, and regimental courts martial maintained in the same order and plan as in the existing Act. Unless the Secretary of State for War could give him reasons for this extraordinary change he should be bound to ask for a Division.

§ COLONEL STANLEY
could not agree with the hon. and gallant Member for Aberdeenshire (Sir Alexander Gordon) that the Bill introduced any complication. So far from that being the case, it seemed to him that the two clauses taken together, as they were intended to be, really made the matter very much clearer. The hon. and gallant Gentleman had correctly quoted what he (Colonel Stanley) said when introducing the Bill to the House. He then observed that there were two classes of courts martial—the courts martial convened by Statute alone, and those convened by Warrant from Her Majesty. The regulations as to general courts martial remained unaltered, for the convening authority must be Her Majesty, or a person authorized by Warrant. He could not quite understand in what way the power of the Sovereign had been altered. As regarded the position of officers holding an immediate authority, it was intended that the mere fact of holding a warrant for the convening of general courts martial should carry with it the authority to convene district courts martial. That was the alteration that was made. He was afraid that if he were to take the Amendment of the hon. and gallant Gentleman as being hostile to the principle he had enunciated he must resist it.

§ SIR ALEXANDER GORDON
observed, that the right hon. and gallant Gentleman had not said why he introduced the question of the superior officer. An entirely new system was started.

§ COLONEL STANLEY
said, it was true that they had altered the detachment general court martial. It now passed under the name of the regimental court martial. Of course, the hon. and gallant Gentleman could not fail to see that there was a wide power given to particular officers; but in that respect it was not intended to interfere with the ordinary powers of commanding officers of regiments.

§ SIR ALEXANDER GORDON
said, that if it were not intended to interfere with the ordinary powers of the commanding officers of regiments, then the clause must be altered; because it gave power to superior officers to convene courts martial, whether the commanding officer liked it or not. Hitherto, it had been most important that the commanding officer of a regiment should feel that that power rested with him, and that he was responsible. When a commanding officer wanted a higher power, he went to a superior officer for a higher class of court martial. He desired the right hon. and gallant Gentleman to state where power was given to the Sovereign to assemble courts martial; what part of the Clauses 47 and 48 contained that power which now existed in the Military Act, and without which the Sovereign could not hold courts martial? [Lord EUSTACE CECIL: In the 137th section.] He (Sir Alexander Gordon) thought that that power ought to be provided before they went a stop further. They ought to give the Sovereign power to hold courts martial at the part of the Bill where courts martial were dealt with, instead of giving such authority at the tail-end of the Bill. In the old Mutiny Act that power was provided in the first four lines; and he maintained that the present clause should commence in a somewhat similar manner to that Act. He was watching the progress of the Bill most carefully; because the practical effect of this clause, and others affecting the Prerogative of the Crown, was that the Sovereign would have power to hold courts martial without the authority of Parliament.

§ COLONEL STANLEY
directed the hon. and gallant Gentleman's attention to Clause 48— The following rules are enacted with respect to general courts martial and district courts martial:—(1.) A general court martial shall be convened by Her Majesty, or some officer de- 442 riving authority to convene a general court martial immediately or mediately from Her Majesty. (2.) A district court martial shall be convened by an officer authorized to convene a general court martial, or some officer deriving authority to convene a district court martial from an officer authorized to convene general courts martial. Then Clause 122 provided that— Her Majesty may, by any Warrant or Warrants under Her Sign Manual, in such form as Her Majesty may, from time to time direct, from time to time convene, or authorize any qualified officer to convene, a general court martial. He really failed to see the hon. and gallant Gentleman's point.

§ SIR ALEXANDER GORDON
said, that the words which the right hon. and gallant Gentleman had just read ought to commence the part of the Bill they were now considering.

§ MR. J. HOLMS
moved, in page 22, line 22, after the word "consist," to insert— Of five ranks of members, viz.: one captain; two first lieutenants; two second lieutenants ! two non-commissioned officers; two privates; the captain to be president. [An hon. MEMBER: And two drummer boys.] The hon. Gentleman said they had completed that part of the Bill which dealt chiefly with crime and punishment, and now they came to another very serious portion of the question—the formation of' courts martial. The powers which were invested in courts martial were very important; and he was not quite sure that the Committee was fully impressed with the magnitude and seriousness of the question. He would only give them one fact which ought to arrest their attention, and it was this—that on Saturday morning, amongst the other Parliamentary Papers that were delivered to them, there was one which set forth the number of criminal indictments that were for trial before the Courts having criminal jurisdiction in England and Wales in the year 1877. The number of such indictments was 15,179; while, in the same year, the number of courts martial held in the British Army was 15,793. The criminal indictments, however, referred to persons, the other calculation to trials; so that, in order to correct the two returns for comparison, it was as well to state that the number of persons tried by 443 courts martial in the British Army in 1877 was close on 14,000. That was a comparison which ought to arrest the attention of the House of Commons, and of the Committee. In the former instance;—that of the criminal indictments of England and Wales—all the persons were tried by their peers; while, in the other case—the courts martial— the persons charged were not tried by their peers. And that was the point to which he wished to call attention. In reality, the particular clause that his Amendment applied to dealt only with regimental courts martial; and the number of persons tried by regimental courts martial in 1877 was 6,549. He wished, at the very outset, to state that he had no desire to stand by the exact arrangement of his Amendment; but he did particularly wish to urge that they should consider the propriety of introducing a new system respecting the formation of courts martial, in order that they might be able to give to the soldier some guarantee that he would have as great justice done to him in the Army as any civilian had in civil life. They had not hitherto received, to any great extent, the advantage of the opinions of the Law Officers of the Crown in the consideration of this Bill; they might, perhaps, receive it upon this particular point. He was aware that the probable answer he would receive from the military authorities in the House was that a proposal of this character was not at all fitted to their system; that this was an application of a German system—that it was foreign. He at once admitted that; but he begged hon. and gallant Gentlemen to consider how far it might not bo advantageous to them to adopt some such principle. He was perfectly willing to examine with great care any objection that might be made. He knew he would be told that in foreign Armies they had conscription; but that in England they had no conscription. He was disposed to examine this point; and, in the first place, he would ask the Committee if our system was so perfect that it needed no change? He asserted that they had now got a good class of men in the Army; and if they expected to get and to keep them some change was necessary. The War Office could not complain that they had not had, during the last six or seven years, almost all they had asked for. To-day, with 444 only 132,000 men, they had granted them £2,500,000 more than they had five years ago. If they looked for the result of their system at the little war now going on in South Africa, he scarcely thought there would be anyone bold enough to say, or to suggest, that the system was anything like satisfactory. The system was going to be examined by a Departmental Committee—an admission that the Government did not think the system was anything like perfect. The second objection to which he would refer was that they ought not to adopt the system he proposed, because they had not, as in foreign countries, the system of conscription. Now, he would ask hon. and gallant Members to consider why it was that in Germany, although they there had the conscription, they gave a man the same freedom when he was moved from the civilian life to the military life—he maintained the same rights he had when in the civil life? In Germany, no sense of degradation attached to a man serving his country in the ranks, and care was taken that the men should have their equal rights. Suppose they had the conscription to-morrow in this country, could it be supposed the nation would allow that men, taken from their homes by force, should have less consideration before the law than they had at present? Certainly not; and to be consistent, if men were taken into the Army now, as volunteers, they should have the same opportunity of being tried by their peers as they had if brought before a jury. In the Army, on the other hand, a man was not tried by his peers at all. This was no question of raising the pay of the soldier for our Army; it was the improving of the terms under which ho served—that he should be treated the same under his military life as under his civil life. He had no wish to urge the adoption of any extreme measure; and this, he thought, was a fair way of raising and discussing that principle of law, that a man should be tried by his peers; and he hoped the Secretary of State for War would take it into consideration. He moved the Amendment of which he had given Notice.

§ MR. CAVENDISH BENTINCK
said, the hon. Gentleman had raised, by his Amendment, a very grave and important subject; and though he only now proposed to apply his Amendment to 445 regimental courts martial, yet he perceived, by the other Amendments on the Paper, it was intended to extend the principle to the higher courts. In the first place, the Amendment was one it was quite impossible for the Government to accept; and he intended briefly to give, from a legal point of view, the reasons for the Government's determination. Mixed up with the subject there were, no doubt, many considerations of discipline; but as he was not a military man, he would leave those points to be treated by his right hon. and gallant Friend in his reply, addressing himself rather to the legal question. As the hon. Gentleman was aware, the system of trying soldiers by courts composed of officers was of long standing; and so long ago as 1792 a very eminent Judge laid down the principle upon which these courts had been always conducted. Lord Loughborough then declared that, the Army being established by authority of the Legislature, it was indispensably requisite that order and discipline should be maintained in it, and that those who composed the Army should, in their military capacity, be subject to trial by officers. The learned Judge then laid down the principle that the officers were responsible for the discipline of the Army; and, further on, in the same Charge, he said— The Army, being under the command of officers, those officers are answerable to the civil power that the soldiers are kept in good order and discipline. That principle had been acted on since; and then he came down to the time—not many years ago—when the whole question of the constitution of courts martial was brought under the view of a Royal Commission, composed of many persons eminent in both civil and military life. His noble Friend opposite the Member for the Radnor Burghs (the Marquess of Hartington) was a Member of that Commission. A great number of witnesses of all classes—officers, and from the ranis—were then examined, and anyone who knew anything about the proceedings would know that the inquiry was conducted in the most impartial spirit. In one of the first paragraphs of their Report, the Commission went on to say— We are bound to add the expression of our belief, founded on the evidence from men of all ranks, that although there may be defects in the 446 system that require correction, these courts have the confidence of the Army, and are satisfactorily spoken of even by those who have been subject to their jurisdiction. After stating their opinion that these courts ought to be retained in principle, the Commission further reported— We think, inasmuch as courts martial are tribunals for trials of issue and questions that must depend on the usages of war, it is essential to maintain their strictly military character. The Report further recommended that every subaltern officer, before sitting as a member of a court martial, should pass an examination before a Board presided over by the Deputy Judge Advocate, or by a person deputed by him. These recommendations of the Commission on Courts Martial had not been carried out to the letter, but they had been followed in spirit; and though subaltern officers were not required to pass the examination, yet they were required to attend courts martial for a certain period, so that they might be instructed in the duties they would have to perform. The proposal of his hon. Friend to introduce into the courts non-commissioned officers and privates would strike at the root of the principles which guided the proceedings of courts martial. Whether or not the courts, as now constituted, gave satisfaction to the Army or not, was a question he did not hesitate to answer. From his own experience, he could say they did give satisfaction. Among the great number of courts martial referred to, as having been held in the last few years, his hon. Friend was aware that all general and district courts martial had their proceedings brought under the Judge Advocate General's Office, where they were carefully perused, and in very few instances were the decisions reversed or modified. In 1879, the courts gave as much satisfaction to the Army as was the case when the Royal Commission sat. He understood it was demanded that the soldier and the civilian should be put on an equal footing in regard to the administration of jusice; but it did not at all follow that a civilian, if he committed these offences, would be tried by his equals. Almost all offences that came under the cognizance of courts martial were in civil life tried in a summary way; and, therefore, if they substituted civil for military procedure, the soldier would not be any better off than he was now. He passed 447 by altogether the consideration of what was done in foreign Armies. He did not know that his hon. Friend was a great authority on that subject; but if he were, he might be justly answered by the objection that the English Army was not like foreign Armies, and resembled them in no respect, and if French and German private soldiers sat on courts martial, that was no reason why ours should. He was satisfied it was contrary to the legal spirit which should conduct those proceedings; nor did he think that military men on either side of the House would say that such a proposal as this, if carried into effect, would in any way conduce to good order. COLONEL ALEXANDER thought the private soldier himself would be inclined to say to the hon. Member for Hackney —"Save me from my friends." The private soldier was not only not fitted to serve on courts martial, but he would not wish to do so. The Royal Commission in 1869 took evidence from private soldiers as to their opinions of courts martial, and the manner in which they were conducted. The names of the witnesses who were examined were not divulged, nor the numbers of their regiments, and they were assured of that beforehand. They came forward perfectly voluntarily, and gave their evidence with the utmost freedom. Private H. stated he believed that a man who was tried by a regimental court martial got full justice at his trial, and he had never known a man to be unjustly convicted by a regimental court martial. Private G. said he had been twice tried by a court martial, and he had no fault to find with it upon either occasion. He added, " I have had fair-play; " and what could be said more than that? Private E. was against the system of regimental courts martial, and preferred district and general courts martial, be-cause ho thought regimental courts martial were influenced too much by the colonel; but, then, he added that he bad never known a case of a man who was known to have been unjustly convicted by a regimental court martial, although, as a matter of fact, he preferred the superior court to the inferior court. Corporal E. said the feeling amongst soldiers was that a man who was tried by court martial had a fair means of defending himself, and he had never heard any complaint as to the 448 decisions of courts martial. Bombardier E. of the Royal Horse Artillery, said he had never seen any injustice in a court martial, and he had never known a man convicted who was known by his comrades to be innocent; and evidence was given by several non-commissioned officers to the same effect. The want of education in our private soldiers would be a very serious defect. Every officer, on joining the Army, had to attend the proceedings of courts martial for six months before he was allowod to sit on one; and before he could sit on a general court martial he must have served three years. Would the hon. Member for Hackney select his private soldiers to sit on courts martial in the same way, or would he say that a private who had joined six months should sit on a general court martial upon which an officer who had joined two years could not sit? It was quite true that, in the German Army, privates sat on courts martial; but one of the points in a German court martial was this—that each member had to sign his opinion; and, perhaps, they would get many private soldiers serving on courts martial in the English Army who would not be able to sign. Then, in Germany, the members of the court were cautioned that the finding and sentence were not to be divulged. Did hon. Members think that an English private, when he found himself in the barrack-room all day, would not discuss the proceedings of a court martial; and that the comrades of a man who had been a member of the court would not attempt to ascertain from him what the finding of the court had been? And did they not think that, in the event of its being ascertained that Private So-and-so had voted for a very severe sentence, he would not be a marked man in the regiment ever afterwards? It was absurd to say he would not. Then, supposing a soldier were taken up for being absent in a disorderly house in the purlieus of Westminster, was he to be tried by another soldier who, perhaps, was absent at the same disorderly house on the previous day? Not only that, but he thought there would be the greatest difficulty in composing this mixed court martial. Every man, on being put upon his trial, would ask if he had any objection to the members of the court; but as peremptory challenges were not allowed, some of the reasons 449 that might be given for objecting might be rather amusing. Indeed, he thought there would be some difficulty in composing the court under these circumstances. . But, with regard to Germany, ho did not think the English privates would care much for copying the German system in any way. Perhaps the hon. Member for Hackney might not be aware of some of the summary punishments to which the German soldiers were subject. They were made to undergo imprisonment in a cell with a lath floor, in which the offender could neither stand nor sit without pain; and this torture was so excessive that there was a regulation that there should be an interval of 48 hours between every 24 hours of punishment. Then, a delinquent, instead of suffering arrest, might be tied to a tree, or a wheel for three hours daily. Captain Hozier, who gave evidence before the Commission, said that, in the field, very few courts martial were held in the Prussian Service, and that men were punished very severely without any court martial. They tied men to gun wheels and other torturing punishments. He was quite certain the privates of the English Army would not thank the hon. Gentleman for his proposal.

SIB WILLIAM HARCOURT
said, there was a great deal, no doubt, in the Amendment that commended itself to one's sympathies; but when they talked of assimilating the military and civil systems, it would not be done by this Amendment. A man who served on a court martial was not only a juror, but a judge; and the Amendment would assign to private soldiers duties which were reserved for judges, and were not a portion of the duties of a common jury at all. For instance, the sentence, which was, above all, a question for the judge, and which nobody would think of leaving to the jury — that, according to the Amendment, would be left to the private soldier. That was a serious question, which should be left to the judge, as questions of law and evidence should be left to the jury. Now, they must constitute a court martial in a manner to fit it to be both judge and jury, which, in fact, it was. In civil life they did not compose their juries of everybody. There was a qualification for a jury laid down in the Act of George IV., which was passed in the year 1825. They took care that the illiterate and the lowest classes 450 should not be members of juries; but how did the hon. Gentleman propose to do that with the privates of a regiment? There was no qualification proposed in the Amendment. In civil life they had a qualification for common jurors, and they had a qualification of another character for a special jury; but in a regiment there would be no such security at all for the class of the hon. Gentleman's jury, even if they could be considered a jury at all. How would his hon. Friend choose his privates? If they were to have privates on a jury, they must be taken indiscriminately; because, if they began to discriminate, they made an evil which was far greater than the one they were supposed to cure. They would never allow the authorities to select men to conduct the case; anything approaching to selection would be strongly objected to. What could be worse than to have the pet private of the regiment, who was to be put on a court martial? He would be, probably, regarded as the most objectionable member of all. Then, were they to have the newest soldier, or a man whose character was bad, but who had succeeded in keeping out of the hands of courts martial? Neither of those men would command the confidence of his comrades, or anybody else. Therefore, the practical difficulties in the way of forming a jury of that kind were absolutely unsurmountable. He was not familiar with the working of the German Army; but this he could say—that in the system of the German Army they got a better class of men to sit on courts martial than the average English private soldier. They were men of a higher and more educated class. Therefore, it seemed to him, for all these reasons, that there were strong practical objections to the Amendment. MR. CALLAN said, he at first sight intended to vote for the Amendment; but on consideration, and in the interest of the private soldier, he should certainly vote against it. He believed the esprit de corps was such that a private soldier would feel more confidence in a court martial composed of officers, than he would in a court partly composed of privates and non-commissioned officers, who were brought more into immediate contact with him. There was one argument, however, which was used by the last speaker but one, which, if it were given effect to, would narrow exceedingly the 451 number of officers from which courts martial could be drawn. The hon. Member said a great objection might be urged—'' How can you expect a private soldier to act impartially towards a brother private who had spent the evening in an improper house in the purlieus of Westminster the previous evening? "Now, if they applied the same rule to the officer who had spent the evening in the purlieus of Brompton and St. John's Wood, it would certainly narrow the number of officers available for the court martial in such a case. Therefore, he thought the point raised by the hon. Member would tend against his argument.

§ MAJOR O'BEIRNE
said, from his knowledge of the private soldier, he thought there was nothing he would dislike more than to be tried by noncommissioned officers and men. Very likely the non-commissioned officer who had reprimanded the man for a breach of duty would be on the court martial, and he would expect no "justice from such a court; and the argument of the hon. and learned Member for Oxford (Sir William Harcourt) was simply unanswerable with regard to a court martial, which was judge and jury likewise. The men in the German Army were taken from a wholly different class; and if they were well-fitted to serve on courts martial, the English private soldier was not.

§ MR. BIGGAR
was satisfied that the Amendment was one which ought to be carried, according to the most ordinary dictates of justice to the soldiers in the Army. A private soldier in the British Army was probably enlisted while he was tipsy, under present conditions; although, he believed, according to the new law, it was not to be the case in future, and that the principle of enlistment would be different. However, the man was brought into the Army in that way, and he was thrown into the hands of men whom he believed to be his enemies. The practical result was that, in a very large number of cases, those men deserted from the Army, and, instead of being an advantage, he was a detriment and a cause of annoyance and inconvenience to the authorities. Now, if some system were devised by which the private soldier might be more satisfied with his position in the Army, it was certain there would not be so 452 many desertions; and, in addition, they would get a better class of recruits. The one reason why they did not get a better class of recruits was that they were very badly treated, and had no confidence in the justice of the Army. It was alleged that the privates whom it was proposed to put on the courts martial would not care for the position, and there were insuperable difficulties in the way of getting men who were qualified. That was easily answered. It would be easy to select them from men of a certain number of years' service, and men who had never been punished for any offence, or to select them by lot, and then a fair representation of the private soldiers upon the court would be made. Of course, he would not be in favour of packing the jury, and he would not be disposed to accuse any officer of a desire to do so. He thought they had no right to say that officers would not be disposed to act fairly in the matter. The Amendment was a fair one, and not unreasonably favourable to the private; for this reason—It was proposed to have five officers on the court, and two noncommissioned officers, and two privates, thus getting a bonâ fide majority of officers. The arguments which had been advanced in favour of the present system seemed to him to be wonderfully weak. The Judge Advocate General had cited the opinion of Lord Loughborough, given many years ago, that the present system was a good system; but he supposed this question of putting privates on courts martial was not raised in Lord Loughborough's time; and if it had been, and if his Lordship had been opposed to it, it would only have been the opinion of one man. Therefore, he thought the opinion of Lord Loughborough was of very little value in the matter. Then, they had the Commission quoted to them, and it was shown that the general evidence taken before the Commission was favourable to the present system; but it seemed to him that some of the privates proved too much. They said— "We never knew a man convicted whom we knew to be innocent." If they had said—" whom we believed to be innocent," it would have been worth something; but as it was, it was mere verbiage, and of no value. He thought the Amendment should be carried, subject to some revision for making an impartial selection of the different persons 453 composing the court martial, and then there would be an opportunity of giving prisoners justice, and of giving them a tribunal in which they and the public should have a right to have confidence. One of the arguments advanced against the proposal was this—that the members of the court martial would be likely to talk in the barrack-room of the result and progress of the case. He thought that was a very good argument in favour of non-commissioned officers and privates being admitted, because one of the most valuable things was publicity. If persons heard the evidence they would, probably, be better satisfied with the result than they would if they did not know what had taken place, and if they only heard an unfair and partial statement.

§ COLONEL ALEXANDER
, interposing, explained that he only said they would talk over the finding and sentence, not the evidence.

§ MR. BIGGAR
said, even so, it was very desirable that they should inspire confidence. In all probability, the members of a court martial went into a private room to consult, and, in giving their decision, they did not give their reasons; but if they discussed the matter in the presence of non-commissioned officers and privates, the result would be that a certain amount of public opinion would be exercised over the officers, and, therefore, they would be likely to give decisions in which the public and the Army would have confidence.

§ SIR HENRY HAVELOCK
said, the Amendment, undoubtedly, had, at first, a very fascinating effect on a certain class of men; but, on examination, it would be found to be the most impracticable and impractical Amendment that was ever proposed. In confirmation of what had been said, and coming at the same facts from different points of view, he might say that he had heard the opinions of hundreds of soldiers, both those still serving and those who had left the Service and were likely to be under no influence, and he never heard any soldier express the slightest doubt as to the justice and impartiality of the tribunals already existing in the Army. Perhaps the hon. Member might not be aware that as far back as the Crimean War, and before that, there was an informal tribunal in the Service—an extreme development of the principle ad- 454 vocated by the hon. Member for Hackney —a tribunal which was called the company court martial, and which dealt with certain offences committed by the soldier affecting his fellows, such as pilfering and theft. The officers did not interfere at all; but permission was given to the oldest soldiers in the company to assemble an informal tribunal, in order to administer justice to the criminal in any way they thought proper. Usually, the offender was laid on the table and punished with a flat rod; and the reason that tribunal was abolished was because it was found the severity of the sentences it inflicted was far greater than that of those inflicted by the more regular tribunals then existing. There was one point in relation to this Amendment which its Mover had overlooked, and that was that if he desired that a soldier should be tried by his peers, he should prevent non - commissioned officers, of all persons, from being on the court; whereas he proposed to put two non-commissioned officers and two privates. It was one of the most essential points in the Service, and the reason why such good feeling existed, that the non-commissioned officer in the English Service had not any primitive or disciplinary power whatever, as he had in the foreign Services. The non-commissioned officers were kept as an intermediate class, and their position was preserved because they were never allowed any voice whatever, except as regarded giving evidence, in connection with the punishment of a soldier. The non-commissioned officer was constantly brought, from the circumstances of his position, into contact with the private, and was often likely to bear a grudge against him, which could not be entertained by anybody in the position of an officer. Therefore, he was the last person to whom judicial powers should be granted. If, as an alternative, his hon. Friend had proposed a court consisting half of officers and half of privates, it would have been a far more impartial tribunal. However, he (Sir Henry Havelock) preferred the existing tribunals; and as no possible good could arise from the Amendment he was compelled to vote against it.

§ GENERAL SHUTE
said, he knew the hon. Member for Hackney never wished to take up the time of the House unnecessarily, and he was sure if the hon. 455 Member had had a little acquaintance with, the practice of courts martial he would never have proposed this Amendment. A great object was made of giving theoretical instructions to officers with regard to the Criminal Law, and even on a regimental court martial care was taken to have every officer properly qualified, a point being made of having only one junior officer without previous practice. When the court was closed to decide upon the finding and sentence, the. orders always were to take the opinion of the junior officer first, in order that his opinion might not be influenced by those above him and senior to him in the Service. But the consequence of adopting the Amendment would be that they would actually have on the court martial a majority of ignorance. They would begin with the two private soldiers giving their opinion as to the verdict and sentence before they came to any officers of experience, and the whole question would be decided by two privates and two non - commissioned officers. He was quite sure that if his hon. Friend had been aware of those circumstances he would hardly have suggested such a composition of the court.

§ MR. O'DONNELL
said, that to listen to the hon. and gallant Members who had taken part in this debate it might be supposed that the soldiers of the British Army were peculiarly happy, and that there was something sweet and pastoral about our military system which produced the utmost contentment amongst them. Was that happiness and contentment, however, proved by the 6,000 desertions per annum from that Army, by the readiness of the soldiers to get out of it when their time had expired, or by the reluctance of even the non-commissioned officers to remain in it one moment longer than they could help? The whole argument against the proposed Amendment rested upon the conviction of hon. and gallant Members that the Army of which they themselves were officers was in a perfectly happy and contented state. For his own part, ho saw no proof that the Army was in a happy or a satisfactory condition. That the soldiers themselves were not satisfied was proved by the fact that successive Governments were at their wits' end to render the Army contented. The various disabilities and marks of inferiority 456 which the soldiers had to endure were the causes of the feeling which decimated, and more than decimated, the Army every year. He had listened with great attention to the arguments of the hon. and gallant Members who opposed the Amendment of the hon. Member for Hackney, in the hope of finding out some good reason for their opposition to it; but he was bound to confess that he had utterly failed in doing so. The right hon. and learned Member the Judge Advocate General held the opinion that courts martial were tribunals in which military justice was admirably administered, and had further asserted that the decisions of those courts were very carefully revised. Now, it appeared that, on an average, some 8,000 courts martial sat every year; and from the calculation of the hon. and gallant Member for Leitrim (Major O'Beirne), if even one single hour were given to the revision of each sentence pronounced by those courts, it would take the Judge Advocate General no less than 333 days a-year to revise them. And those 333 days might well be called working days, inasmuch as they would bo days of 24 hours each. It was evident, from the confidence with which the Judge Advocate General spoke on this subject, that he was in the habit of revising these sentences himself; and, therefore, it was clear that he was not only unable to avail himself of the rest afforded by the usual Bank Holidays, but that he was not getting his legitimate number of Sundays. He was afraid, however, that the statement of the Judge Advocate General, that these courts martial sentences were subjected to careful and strict revision, was based rather upon official dash and confidence than upon any more solid foundation. Then, there was another argument of the Judge Advocate General which had been greatly relied upon by the hon. and gallant Members who opposed the Amendment put forward by the hon. Member for Hackney, and it was founded upon what was called the necessary inexperience of the proposed new members of the courts martial. It was said that the men who had recently joined the ranks could not be excluded from the courts martial without injustice; and that if they were allowed to become members of them, their inexperience would render the decisions of 457 those courts less respected than they were now. It was, however, quite possible to look at this question from another point of view. Commissioned officers were allowed to take part in the decisions of these courts when they had only been six months in the Service; and, surely, the judgment of such men on military offences was entitled to far less weight than that of non-commissioned officers of four, five, or six years' standing? The fact was that in their zeal against the introduction of any new elements derived from the noncommissioned officers and the privates into these tribunals, hon. and gallant Members had only looked at one side of the case. The hon. and gallant Officer (Colonel Alexander) opposite had triumphantly quoted the evidence given by certain non-commissioned officers and privates who were examined before the Commission, to show how few of them had given an adverse opinion with regard to the working and the decisions of courts martial. It must, however, be remembered that although in the Blue Books the names of those men were concealed under letters of the alphabet, the men themselves were fully aware that their real names would creep out, and that they would have to endure the consequences of the evidence they were about to give. Indeed, it was probable that not a single non-commissioned officer or private went before that Commission without being certain that the nature of the evidence he was about to give was perfectly well known. In these circumstances, the presumption was that he would be most unlikely to give any evidence that would be displeasing to his military superiors. From his own experience and that of other hon. Members, derived from the statements of numbers of non-commissioned officers and privates, he could state that the general feeling of the Army with regard to the proceedings of courts martial was exactly the reverse of that which the hon. and gallant Members who had spoken on this question conceived that it was. For his own part, he was much more inclined to place reliance upon the open complaints made by non-commissioned officers and privates, who had no ulterior object in view, of the working of the present system of courts martial, than upon evidence of the character referred to by the hon. and gallant Gentleman as 458 having been given before the Commission. The hon. and gallant Gentleman had also objected that it was quite impossible to assimilate the military with the civil procedure by this Bill. He quite admitted that; but it was not the object of the hon. Member for Hackney's Amendment to bring about such an assimilation of the two procedures. All that the hon. Member for Hackney desired to do was to introduce an element of greater fairness into the courts martial. Therefore, merely to argue that the Amendment of the hon. Member would not convert courts martial into copies of Civil Courts presided over by a Judge was not in any way to meet the case of the hon. Member. Again, the observations of the hon. and learned Member for Oxford (Sir William Harcourt) did not touch the argument of the hon. Member for Hackney, that a soldier would prefer being tried by his peers. Then, as to the various objections which had been made to the Amendment on the grounds of the want of sufficient educational qualifications by the private soldier, of the difficulties of selection, and the doubts as to the character of the men— those were all matters of detail, which could be easily settled if once the principle embodied in the Amendment of the hon. Member for Hackney were accepted. Hon. and gallant Members on both sides of the House had asked what would be said if men who could neither read nor write were permitted to act as jurors? But the hon. Member for Hackney would be perfectly willing that no private soldier who could neither read nor write should be allowed to sit upon courts martial. To listen to the observations of hon. and gallant Members, it might be supposed that the great mass of the Army could neither read nor write; whereas it was the fact that only a very small minority of it consisted of illiterate men, and a large number of the rank and file were fully qualified in all respects to take a responsible part in the proceedings of these tribunals. There would be no difficulty in making such arrangements that no sergeant, corporal, or private soldier having a grudge against the man about to be tried should be a member of the court martial that was to try him. A great deal had been said with regard to the character of the private soldiers and of their general unfitness to take part in, 459 the proceedings of these tribunals; but, although there might be many unpleasant persons in the Army, there was as large a proportion of men of good character and moral conduct in it as could be found in the upper ranks of the Service. Without entering into any particulars on the subject, he asserted that out of every 1,000 privates it would be easy to find the same proportion of well-conducted men as could be found amongst 50 officers. It did not say much for the good feeling which hon. and gallant Members declared existed between the men and their officers that they should endeavour to decry the character of their own soldiers; and those hon. and gallant Members should take care not to have their mouths so continually full of depreciatory remarks with regard to them. For the reasons that he had stated, he declared himself to be very much in favour of the Amendment of the hon. Member for Hackney.

§ MR. WADDY
said, that he had not heard any of the depreciatory observations with regard to the character of our soldiers, to which the hon. Member who bad just sat down referred, fall from the hon. and gallant Members present; and it could not be productive of good feeling for one hon. Member to put into the mouths of other hon. Members observations of that kind which they had not made. Any ground which there might once have been for bringing forward this proposal of the hon. Member for Hackney had been cut away by the abolition of Purchase. What did the hon. Member mean by the term " privates"—were they the young men or the old ones? If he meant by that term the young men, they would certainly be disqualified from sitting on these tribunals by their ignorance of military matters; whereas the best men amongst the older privates had been raised into the ranks of the non-commissioned officers. The fact was that the particular element required for these tribunals was a knowledge of military law increasing rapidly amongst the officers, and he hoped that it would spread more and more every day. It had been abundantly shown, in the course of the debate, that the suggestion now made involved that which was practically impossible in the present state of our Army, and a practical impossibility was not to be got rid of merely by 460 asserting that it was a matter of detail. He must, therefore, oppose the Amendment of the hon. Member for Hackney.

§ MR. O'DONNELL
said, that he had a right to reply to the observations of the hon. and learned Member for Barnstaple, who, in his remarks reflecting upon himself, had slightly outstepped the bounds of decorum which regulated the proceedings of that House, when he stated that he had attributed to other hon. Members assertions which they had not uttered. To say the least of it, such a course was not courteous; and when the hon. and learned Member rose to read him a lecture on the proprieties, he should have been careful not to have outstepped the bounds of courtesy in the flagrant manner he had done. Ho begged to remind the Committee that before he rose to make the remarks he had done, the hon. and gallant Member opposite had asked what provision was to be made to prevent soldiers guilty of offences from sitting on a court martial and trying their colleagues who had been partners with them in committing the offences; and he had quoted the case of soldiers being found in houses of ill-fame in Westminster, and being tried for the offence by a court martial, members of which were soldiers who themselves frequented such places. The hon. and gallant Gentleman opposite had certainly made very serious insinuations and charges against the privates which did not appear to him to be justified. It appeared to him that the hon. and learned Member for Barnstaple had not heard the observations which had fallen from the hon. and gallant Members in that House on the subject; and if he had not heard them he should not have drawn upon his imagination in attacking him. He, however, could make every allowance for the heated feeling of an hon. and learned Member who was desirous of siding with the most numerous Party in that House.

§ SIR ALEXANDER GORDON
said, the Committee ought to be cautious in changing the composition of courts martial. The Courts Martial Commission, which sat in 1869, in paragraph 5 of their Report, stated— These Courts have the confidence of the Army, and they are satisfactorily spoken of even by those who have been subject to their jurisdiction. Again, Lord Chief Justice Cockburn, in his charge to the jury on the trial of the 461 cases arising out of the Jamaica riots, spoke of the proceedings before courts martial being, in general, favourable to the accused. The late Sir Colman O'Loghlen, Judge Advocate General, in 1869, wrote to the Secretary of State for War— I cannot pass from the subject of courts martial without bearing my testimony to the fairness in which, in general, persons are tried by these courts, and to the honest manner in which, on the whole, justice is administered in them. He hoped, therefore, after the opinions which had been expressed on this subject by the high authorities to whom he had referred, that the Committee would be very cautious before they ignored the Report of the Court Martial Commission.

§ MR. HOPWOOD
said, that no one had a right to read the hon. Member for Hackney a lecture upon the propriety of suggesting Amendments upon this Bill which were based upon the principles which had been adopted by the largest and, considering recent events, the grandest Army in Europe. By raising this discussion the hon. Member had, at any rate, done good service. It had been said that this Amendment had been brought forward with the intention of impugning the fairness of hon. and gallant Members who had sat upon courts martial. He disowned that view of the Amendment; and he was sure that the hon. Member for Hackney, speaking on his own behalf, would also disown any desire to impute to the hon. and gallant Members, or to any of the officers of the Army who sat upon courts martial, any tendency to unfairness. That, however, was not the point under discussion. He, and those hon. Members who thought with him, were persuaded that every officer who sat upon a court martial was, according to his particular views and his particular lights, disposed and anxious to do his duty; but the question was, whether these tribunals did, and ought to, command by their constitution the confidence and respect of those who were tried by them? It had been urged that it was impossible, under this Amendment, to secure that a soldier should be tried by his peers; but the same thing might be said of our civil system, under which no man was ever tried by his peers. Would not it be better to give the great body of the soldiers who were tried by courts mar- 462 tial greater confidence in those tribunals by placing some of their own rank upon it? He doubted whether the hon. and gallant Members in that House knew very much about the private soldier, and the disabilities to which he was subjected. He wanted to know what was the view taken by the private soldier on this subject? He had found it very difficult to ascertain what it was Of this, however, the Committee might be satisfied—that the great point on which the good feeling in the Army broke down was not as between the soldier and the commissioned officer, but as between the soldier and the non-commissioned officer. It would be said, triumphantly, that if such were the case, that was the best reason for not placing the non-commissioned officers upon these courts martial; but that was not so, because they would be met on these tribunals by the privates, who would bring with them from the ranks below the feeling of the regiment. The privates, moreover, would be able to throw much light on the causes of insubordination and of desertion, which were now almost altogether unknown to those of higher rank. But it was said that those who supported this Amendment had been led away by a false analogy between the civil tribunals presided over by a Judge versed in the law, and these military courts, over which there was no such president. The oldest officer, however, might well explain the military law to the other members of the court. It must further be remembered that until recent times justice was very fairly administered by officers who were themselves perfectly ignorant of the law, and who were only guided by their own feeling of what was right, and by common sense, in dealing with matters of fact. It would not be very difficult to find a large number of common soldiers who would be capable of deciding fairly upon matters of fact in like manner. He was satisfied that it would add to the feeling of solidarity in the Army if men of all ranks were placed upon courts martial. Then it was urged that the common soldier had not sufficient education to entitle him to a seat in these tribunals. He believed that in some parts of the country men sat upon common juries who were unable to write their names; and yet they had no hesitation in trusting to these possibly skilled but 463 illiterate mechanics the trial of criminals. The magnificent Army of Germany had adopted the principle advocated by those who supported this Amendment.

§ MR. J. HOLMS
said, that in replying to the observations that had been made upon his Amendment, he had no reason to be discontented with the remarks that had fallen from hon. and gallant Members, or from hon. and learned Members, with regard to it. He hoped to see such improvements effected in the Army as would attract a better class of men to it. He could well understand the right hon. and learned Gentleman the Judge Advocate General stating that the Army was quite satisfied with the existing system of courts martial; but when he spoke of the Army, of course he meant the officers only. And, indeed, even if the right hon. and learned Gentleman had intended to refer to the Army generally, his statement that it was content with the existing system would afford no satisfaction to those who were anxious to raise the status of the private soldier. He could also understand the argument which had been put forward that many soldiers were at present unfitted to sit upon a court martial. He, however, desired to get rid of the existing system, and, by substituting for it a better one, to attract a superior class of men into the Army. He could also understand the hon. and learned Member for Oxford (Sir "William Harcourt), when he said that his Amendment would not convert a court martial into a tribunal, such as that which consisted of a Judge and a common jury. He must, however, point out that the system of constituting courts martial he recommended had already been adopted with success in the German Army. Satisfied with having raised this discussion, and pointing out that he had given Notice of similar Amendments upon other clauses, he would not press the Amendment. He had received a number of letters from very eminent men in the Army, to the effect that it would be of great advantage to the Service if non-commissioned officers were not in future to be tried by regimental but by district courts martial.

§ COLONEL STANLEY
said, he could quite understand the ground on which this Amendment had been moved, and he was not, therefore, going to take up the time of the Committee in speaking 464 upon it. He could not, on the part of the Government, accept any definite words, as far as the non-commissioned officers were concerned, because their case would be dealt with by the Committee which had been appointed by the House.

§ SIR ARTHUR HAYTER
moved, in page 22, sub-section 2, line 23, after the word "officers," to insert the words— Such number to be, in the United Kingdom not less than five, and elsewhere not less than three. The hon. and gallant Gentleman said, his object was to restore the complement at home of officers necessary for forming a regimental court martial to the number of five, now required by the Mutiny Act. At the same time, he was prepared to admit that under exceptional circumstances — such, for instance, as might arise in the Colonies from the difficulty of assembling even as many as five— a different arrangement might be permitted, and the number reduced to three. His Amendment would thus restore the exact provision as to numbers for a regimental court martial contained in the present Mutiny Act.

§ COLONEL STANLEY
said, he hoped the Amendment would not be pressed, inasmuch as the present Articles of War gave to the commanding officers power to do all that was asked by it; and that, as in several cases it would not be possible to call together the number of officers proposed by the Amendment, there might be a lapse of several months before necessary inquiries could be held.

§ MAJOR O'BEIRNE
opposed the Amendment, on the ground that justice would be delayed if it was necessary that so large a number of officers as was suggested should be called to serve upon a court martial. This difficulty would be much greater in a Cavalry than in an Infantry regiment, and would entail much more of expense. Therefore, he strongly supported the Amendment which had been moved.

§ COLONEL ARBUTHNOT
agreed with the opinions which had been expressed by the hon. and gallant Gentleman who had just addressed the Committee, mainly on the ground that the proposals contained in the Bill would injuriously affect the Cavalry branch of the Service.

§ SIR ALEXANDER GORDON
supported the Amendment, on the ground that it would afford to soldiers a protection to which they were properly entitled.

§ COLONEL ALEXANDER
said, he had a similar Amendment on the Paper— namely, in page 22, line 23, to leave out, "but such number shall in no case he less than three," and insert— Such number to be, in the United Kingdom not less than five, and elsewhere not less than three.

§ SIR HENRY HAVELOCK
said, there was no reason why in India the number of a court martial should not be five.

§ COLONEL STANLEY
could not accept the proposal in its entirety, because, if carried, it might produce delay; but, at the same time, he saw no objection to leaving out the words " United Kingdom; " and he, therefore, proposed to amend the Amendment in those terms.

§ MR. O'DONNELL
moved, in line 35, after the word "days," to insert "or flogging," his object being that when flogging was to be inflicted it should be by the order of a higher court than a regimental court martial.

§ COLONEL STANLEY
could not accept the Amendment. If the punishment of flogging remained, it would be necessary to leave its infliction in some cases to regimental courts martial.

COLONEL DRUMMOND-MORAY
said, if the latter part of the sub-section, the omission of which he intended to move, were allowed to remain in the clause, a great alteration would be thereby made in the law as it at present existed. Under the Articles of War some offences were considered 466 to be of too grave a character to be tried by regimental courts martial, and were, therefore, dealt with either by general or district courts martial; but the effect of the clause as it then stood would be to render such offences triable by regimental court martial. The opinion held by one commanding officer as to whether a certain offence should be tried by general, district, or regimental court martial, might be entirely different from the opinion held by another commanding officer; and, therefore, it might occur that of two persons tried for the same offence, say at Aldershot, one might receive a heavy sentence from a district court-martial, while the other, being tried by regimental court martial, would only get half the punishment awarded in the other case. The clause gave greater power to the commanding officer than he now possessed, inasmuch as it would rest with him to decide whether a man should be liable to 42 days' imprisonment, or whether he should be liable to two years' imprisonment. For these reasons, he thought that the offences triable by courts martial should be scheduled in a way which would insure that grave offences should be tried by higher courts than regimental courts martial. He therefore moved in page 22, line 35, to leave out from the word " ignominy," to the end of the clause.

§ COLONEL STANLEY
objected to the Amendment, on the ground that it would practically give no discretion to commanding officers in the matter of courts martial. It was well known to be the custom, under the old rule, to apply for the appointment of the highest class of courts martial by which a man could be tried; and the answer usually given was—" You must try by district court martial; we cannot give you a general court martial." By allowing the clause to remain unaltered, he could not help thinking that the responsibility of deciding the proper class of courts martial to be convened would be left upon the shoulders of the right persons.

§ SIR ALEXANDER GORDON
entirely agreed with the views expressed by the hon. and gallant Members opposite who had just spoken. It was well known that commanding officers of regiments would, in many cases, try grave offences by regimental court martial, in order to have a blank court martial return; and the Commander-in-Chief, as well as the War Office authorities, were very apt, in consequence, to form an erroneous judgment as to the character of particular regiments. It was very necessary to insure that commanding officers should not shrink from bringing their men to court martial for grave crimes; but this would be rendered impossible if the clause remained in its present form.

§ COLONEL ARBUTHNOT
took a little exception to the remarks of the hon. and gallant Member for Aberdeenshire (Sir Alexander Gordon), which implied an intention on the part of commanding officers to screen the men in their regiments from the punishment due to their offences. Such cases, in his opinion, were so rare and extraordinary that it would be quite unnecessary to provide for them. But there was much that was worthy of consideration in the proposal of the hon. and gallant Member for Perthshire (Colonel Drummond-Moray); because there could be no doubt that commanding officers differed very much in the views which they took as to the gravity of crimes—some regarding a crime as a grave one, which others would look upon as perfectly venial. For that reason, he agreed that it would be advisable to schedule the offences in the manner suggested by the hon. and gallant Member.

§ MR. CAVENDISH BENTINCK
could not admit that any sufficient reason had been urged for limiting the discretion of officers in the matter of courts martial.

§ SIR ARTHUR HAYTER
thought that some security other than that which the right hon. and gallant Gentleman the Secretary of State for War had introduced into the clause should be provided in the Bill. The Articles of War prescribed the offences which were triable by the various degrees of courts martial; but the present Bill contained no similar security. He supposed, after the passing of this Bill, very little would be heard of the Articles of War; and it was, therefore, very important that the Amendment of the hon. and gallant 468 Member for Perthshire (Colonel Drummond-Moray) should, in some form, be accepted.

COLONEL DRUMMOND-MORAY
trusted that the right hon. and gallant Gentleman would state to the Committee whether he intended to schedule the offences?

§ COLONEL STANLEY
, for the reasons already stated, was unable to agree to the proposal of the hon. and gallant Member.

§ SIR WILLIAM HARCOURT
could not agree that the matter could be best dealt with by scheduling the crimes. He understood that one of the great difficulties was that originally under the Articles of War the matter was arranged, not according to the character of the crime, but according to the character of the tribunal which carried with it the punishment. The great objection to that, and the one which induced the Committee to assent to the plan proposed was, that it was said that when an offence was carried to a district or general court martial the court seemed to feel that they were compelled, from the mere fact of the crime being carried before them, to award a high punishment. That was one of the strong arguments by which the Committee were pressed. As far as he understood the clause, it proposed that offences of whatever character might be submitted to a regimental court martial; but that the regimental court martial should not give more than a certain amount of punishment. It was quite possible that the authorities might consider that the offence, owing to the circumstances which surrounded it, might be adequately dealt with by a, moderate punishment, and would, therefore, not send it to a general or district court martial, where the punishment might be of a very much heavier kind; but he could not understand that any officer in command of a regiment would desire that crimes should meet with an inadequate punishment; if so, he would be extremely unworthy of the commission which he held. He (Sir William Harcourt) was surprised to hear officers of such experience as the hon. and gallant Members for Ayrshire (Colonel Alexander) and Aberdeenshire (Sir Alexander Gordon) say that commanding officers would deliberately refer crimes to certain tribunals because they knew that they would be inadequately dealt 469 with. If that were so, all he could say was that, instead of amending the present clause, the officers in question ought to be removed from the Army, because they must be persons utterly unfit to discharge the duties which they were called upon to perform. But, taking a higher view of them, if they were fit for the positions in which they were placed, they must exercise some discretion as to whether a crime ought to be referred to one tribunal or another, and that was what the clause provided for.

§ SIR WILLIAM CUNINGHAME
trusted that the Secretary of State for War would mate some concession in this matter; for he fully concurred in the opinions which had been expressed by his hon. and gallant Friends upon the subject of scheduling the crimes to be referred to the various degrees of courts martial. Those opinions, he felt sure, would be shared by commanding officers who were experienced in these matters. And, speaking from his own experience, he thought it advisable that the proposed Amendment should be adopted by the Committee. He had no recollection of there having been any difficulty in carrying out the old arrangements, which left certain offences to be tried by the highest class of courts martial, and others to courts martial of the second class, while crimes of another degree were referred to regimental courts martial; on the contrary, as a matter of practice the rule had worked exceedingly well, and ho could not see what advantage there would be in instituting a new system which, in his opinion, could hardly be an improvement on the old regulations, that had worked so well for many years. Therefore, he thought it would be a very good plan to schedule crimes in the manner proposed by the hon. and gallant Member for Perthshire.

§ SIR ALEXANDER GORDON
was bound to say, after the remarks of the hon. and gallant Member for Hereford (Colonel Arbuthnot), that when he had gained the experience which he trusted he would some day possess, he would find that the facts alluded to by him (Sir Alexander Gordon) had been accurately stated. Whenever the hon. and gallant Gentleman looked over the books of many regiments, he would see that nothing was more common than that some offences had been disposed of 470 by an officer instead of being referred to court martial, and others were tried by an inferior court which ought to have been referred to a superior court. By Act of Parliament, and by the Articles of War, disobedience to orders was a crime which no commanding officer could punish himself, yet this was frequently done. Again, it was a fact that when the quarterly returns of courts martial were sent in, objections were often taken to the courts martial which had been held upon certain offences; and in almost every case a note was returned to say that " this crime ought to have been tried by a superior court, where is the authority for this man's trial?" He therefore hoped the Secretary of State for War would see his way to provide a remedy for these irregularities.

§ COLONEL ALEXANDER
felt so strongly on this subject that he hoped it would be pressed to a Division. With reference to the remarks which had fallen from the hon. and learned Member for Oxford (Sir William Harcourt), he wished to state that it was by no means the case that all offences referred to superior courts martial were supposed to be visited with penal servitude. He (Colonel Alexander) was president last year of a general court martial, when two prisoners were tried for insubordination, and in one case the man was awarded five years' penal servitude; but, the circumstances of the other case not appearing of so grave a nature, the second man was only sentenced to two years' imprisonment.

§ COLONEL STANLEY
proposed to leave out the words " prescribed number of," in line 10, page 23, in order to insert the word " nine," instead thereof.

§ COLONEL STANLEY
proposed to leave out from line 13, page 23, the words— such number to be, in the United Kingdom, not less than nine, and elsewhere not less than five, 471 in order to insert instead thereof— Provided, if it be the opinion of the officer who convenes the court martial, such opinion to ho expressed in the order for convening the court martial, and to ho conclusive that such nine officers are not, having duo regard to the public service, available, that such court martial shall consist of not less than five officers.

§ MR. O'DONNELL
thought it would be well to make the minimum number of officers on general courts martial seven instead of five.

§ COLONEL STANLEY
replied, that the number of officers stated in the clause was in accordance with the Articles of War and immemorial usage.

§ COLONEL STANLEY
proposed to leave out from line 16, page 23, the words "prescribed number of," in order to insert the word " seven," instead thereof.

§ COLONEL STANLEY
proposed to leave out from line 17, page 23, the words— Such number to be, in the United Kingdom, not less than seven, and elsewhere not less than three, in order to insert— Provided, if it be the opinion of the officer who convenes the court martial, such opinion to be expressed in the order for convening the court martial, and to be conclusive that such seven officers are not, having due regard to the public service, available, that such court martial shall consist of not loss than three officers.

§ MR. O'DONNELL
proposed to amend the proposed Amendment of the right hon. and gallant Gentleman, by inserting the word "five," instead of "three," as the minimum number of officers that should be accepted for district courts martial. It was felt that a regimental court martial should consist, if possible, of five officers; and, surely, there could be no difficulty in assembling five officers out of the regiments assembled in the district for the purpose of a regimental court martial. He could not accept a less number than five without taking a Division. If that number of officers could not be got together, it would be more to the dignity of the Service that the court martial should not be held at all.

§ SIR ALEXANDER GORDON
hoped that the right hon. and gallant Gentleman would add the words, " Provided, that none of the three officers 472 shall be under the rank of captain." As the Bill stood now, two lieutenants and a captain might constitute a court martial; and he thought that the officers should be all captains, or, at any rate, that the lieutenants should have gained some experience by active service.

§ COLONEL STANLEY
could not agree to this Proviso, although he was prepared to admit that it was desirable that officers forming a court martial should be men of experience. There was no limit for the status of these officers in the Article of War, which merely said that the court should consist of not less than three commissioned officers. With regard to the proposed Amendment of the hon. Member for Dungarvan (Mr. O'Donnell), the point to be considered was that, on the one hand, by fixing the minimum number of officers at three, the court might not be so fully constituted as might be desirable; while, by drawing a hard-and-fast line, and making the minimum number five, the assembling of the court might be rendered impossible for a considerable time, which was the very thing they were endeavouring to avoid. The balance of advantage was, therefore, in his opinion, in favour of three commissioned officers. He trusted that the hon. Member would not go to a Division; but, if so, it would, perhaps, be well to divide at once.

§ SIR ALEXANDER GORDON
pointed out that in the United Kingdom, India, Malta, and Gibraltar, a district court martial must consist of seven officers, and that in Nova Scotia and Bermuda it must not consist of less than five. But by the present clause it was proposed that three officers might constitute a court martial in any part of the world. He looked upon this as too great an extension of the principle of reducing the number of officers on district courts martial.

§ SIR ARTHUR HAYTER
pointed out that the number of officers to be appointed would be governed by the words proposed to be inserted by the right hon. and gallant Gentleman, and that the convening officer would be obliged to express in writing that a greater number could not be obtained consistently with the public interest.

§ SIR WILLIAM HARCOURT
confessed that he could not understand how the clause stood. The view taken 473 by one officer of the interests of the public service might be different to that held by another. A convening officer might think that the officers were better employed in attending to their duties than in sitting upon a court martial, and might have the opinion that this was a sufficient reason for saying that a greater number of officers than three was not available. He did not think that it could ever be the case that in the United Kingdom and India seven officers were not available for a district court-martial. The Articles of War prescribed that a district court martial should consist of seven officers in the United Kingdom, East Indies, Malta, and Gibraltar; but excepted some parts of the world— as Nova Scotia and Bermuda—where, in case of difficulty arising, the court might consist of five officers.

§ COLONEL ARBUTHNOT
thought this was a matter which might be dealt with by the Regulations, and that a special instruction might be issued to meet the peculiarities of each case.

§ MR. BIGGAR
objected to leaving the matter to be dealt with by the authorities, when it could be settled by the House of Commons. It was all very well to allow the authorities to administer the laws; but it was the function of the House of Commons to make them. He hoped the Amendment would be pressed to a Division.

§ MR. O'DONNELL
said, the only argument which had been used by the right hon. and gallant Gentleman in favour of his Amendment was that a prisoner might be often inconvenienced by having his case unduly postponed. But this could not be properly applied to the present question; for he fancied that very few prisoners, indeed, would not be perfectly willing to have their trial postponed, rather than that their case should come before an imperfect tribunal.

§ COLONEL STANLEY
said, the point was not an important one, and, as the hon. and gallant Member for Hereford (Colonel Arbuthnot) had suggested, could be dealt with by the Regulations. He had no objection to put in the words— If convened in the United Kingdom, East Indies, Gibraltar, or Malta, the court shall consist of not less than seven officers. It would rest with the convening officer to say why that number was not available.

§ MAJOR NOLAN
explained, that the great difficulty was to get rid of any individual who entertained wrong views, and persons of that character were almost always to be found on courts martial. If the number were reduced to three, the influence of such a person would be too great; but, with a minimum number of five, it would not make itself so much felt. His opinion was that the minimum number everywhere should be five; for if five officers were sufficient to constitute a general court martial, not only would a great deal of trouble be saved, but the district court martial would be much more used than the regimental court martial, which would get rid of the idea prevalent in the Army that a district court martial thought itself bound to award heavier punishments than a regimental court martial. Although he believed that the number of district courts martial consisting of three officers might be counted on the fingers of the hand, at the same time he saw no use whatever in keeping the number up to seven. He asked the Secretary of State for War to agree to one uniform number as the minimum for district courts martial; and therefore begged to move to insert, in line 17, page 23, after the words "to be," the words "not less than five," and leave out the remainder of the clause.

§ SIR WILLIAM HARCOURT
would ask the right hon. and gallant Gentleman the Secretary of State for War to consider the proposal of the hon. and gallant Member for Galway, as it seemed to him that it offered a very simple way out of the difficulty. Anyone, he should have thought, would be satisfied to have a court martial composed of five, and if a larger number were required they could be appointed; but he did see great force in the argument that where an offence was so serious that it had to be brought before a district court martial, then there ought to be not less than five officers to deal with so serious a matter. It seemed to him that what the hon. and gallant Member proposed was a very satisfactory solution of the case. There was a subsequent clause in the Bill which bore upon this question—namely, that which provided that a sentence of death should not be inflicted unless two-thirds of the officers composing the court martial concurred. It seemed to him that it would be rather 475 difficult to say what were two-thirds of five, or even of seven. That matter could be dealt with when the clause was reached; but he was very much in favour of the Amendment proposed.

§ COLONEL STANLEY
said, that he agreed in principle with the Amendment; but what he should propose was to insert in the clause "that a court should be composed of not less than seven," and then, in the remainder of the clause, to leave it to the general officer to state the reason why he had not found sufficient officers available to make up that number, and in that case to allow him, in the exercise of his discretion, to make the court not less than three. He would, however, look into the matter, with a view of seeing whether the adoption of the Amendment proposed by the hon. and gallant Member for Galway would give rise to any practical difficulty; otherwise, he was disposed to assent to it. He could not help remarking that this Article of War had been framed from the experience of past years, and he thought there might be considerable difficulty in making the minimum number of officers more than three.

§ SIR ALEXANDER GORDON
said, that the Amendment of the hon. and gallant Member for Galway would take away the possibility of having a court composed of three officers only, in case no more were obtainable. He thought that result would be undesirable. If five were taken as the minimum, he thought there should also be a provision that not less than three of those officers should be of the rank of captain.

§ MAJOR NOLAN
considered that subalterns of five years' service were just as fit to form an opinion on any military subject as many captains. He did not say that an officer of less than five years' service was fit; but he was of opinion that officers of that seniority would make a very good court. The number of officers on these courts martial should be, at least, five. The object of having five was to get rid of the opposition of a man who was influenced by particular views. Where a court martial was composed of three only, the opinions of one man who held peculiar views, perhaps, on the gravity of the offence for which the soldier was being tried had an undue preponderance. When the court was increased to five, the influence of one man was not so great. He was not anxious 476 to see any limit of rank imposed upon the officers forming these courts martial; for his experience was that junior officers, although necessarily inexperienced, were, as a general rule, on the side of mercy. If an Amendment was to be proposed, he should be inclined to say that the officers composing the court should be of not less than five years' service.

§ COLONEL ALEXANDER
wished to point out that the difficulty as to obtaining two-thirds of a court composed of five and seven never practically arose; for this reason—a district court martial had never had the power of passing sentence of death; whereas a general court martial, which had the power of passing a sentence of death, was required to be composed of a greater number.

THE CHAIRMAN
inquired whether the hon. and gallant Member for Galway wished to withdraw his Amendment?

§ MAJOR NOLAN
said, that he did— that he was willing to withdraw it.

§ MR. O'DONNELL
said, that he should take a Division.

MR. O'CONNOR POWER
remarked, that the right hon. and gallant Gentleman the Secretary of State for War did not entertain any objection to the proposal of the hon. and gallant Gentleman the Member for Galway; but, on the other hand, was disposed to agree with it, although he was not prepared to carry it out then. If so, it seemed to him that the hon. Member for Dungarvan (Mr. O'Donnell) would act wisely in not pressing his Amendment. He thought that the right hon. and gallant Gentleman in charge of the Bill might very well plead for a little time for the consideration of the Amendment.

§ MR. O'DONNELL
had very great pleasure in postponing his objection till the Report.

§ COLONEL STANLEY
said, he would move, in sub-section 4, after the words "United Kingdom," to insert "East Indies, Malta, and Gibraltar," thus putting those places on the same footing as this country in respect of the composition of district courts martial. Also in the same sub-section, after the words "not less than seven," to leave out "and elsewhere not less than three," in order to insert— Provided, That in the opinion of the officer convening the court martial, such opinion to be 477 expressed in a prescribed way, seven officers are not having regard to the exigencies of the public service available, then the court shall consist of three.

§ SIR ALEXANDER GORDON
moved, in page 23, line 19, after the word "officer," to insert" or person holding the relative rank or position of an officer." His object in moving this Amendment was to provide for the trial of those persons who were not officers, and who were also not soldiers; but who were, nevertheless, subject to military law. If hon. Members would turn to page 94, they would find that a certain class of persons were made subject to military law and liable to be tried by court martial. All persons not otherwise subject to military law who are followers of or accompany Her Majesty's troops, or any portion thereof, when employed on active service beyond the seas, subject to this qualification, that where any such persons are followers of or accompany any portion of Her Majesty's Forces consisting partly of Her Majesty's Indian Forces subject to Indian military law, and such persons are Natives of India within the meaning of Indian military law, they shall be subject to that law. That clause would include a very large and varied class of persons who followed an Army in various capacities, and who were civilians. Sometimes persons were sent out by the Secretary of State for War as official interpreters and in various capacities. There were also newspaper correspondents with a large Army in the field. There was thus a large number of persons following the Army who held the position of gentlemen, and, therefore, the position of officers. By this clause, as it was framed, every one of these persons would be liable to be tried by district courts martial as a common soldier, and to be sentenced and to suffer the punishment of a common soldier in the field, including corporal punishment or imprisonment. He thought that to subject those civilians, who might be engaged in the public service with an Army in the field, to such penalties as this was inflicting upon them a very great hardship. If they were always under protection of the Commander-in-Chief of the Army, there would be no great reason to complain. But any person with an Army in the field, who had authority to convene a 478 district court martial, might order any of these gentlemen to be tried by a district court martial. It was right that the Committee should understand, and that these persons should know, what position they occupied when an Army took the field. He might state that the power of punishing these persons was not in the old Acts, but was a new power, and was totally unknown in any previous Act of Parliament. He thought the Committee should properly understand what it was doing before it passed this clause of the Bill in the shape in which it now was, for it might lead to most important and unpleasant questions.

§ COLONEL STANLEY
confessed that ho did not very clearly see what necessity had been shown for the Amendment, nor did he quite understand what the effect of it would be. At the same time, he quite agreed with the reasons that the hon. and gallant Member had brought forward in favour of the Amendment. The insertion of the words would, it seemed to him, cause considerable inconvenience, for he apprehended that it would be most difficult to know what persons occupied the relative rank or position of officers. He did not think that these persons would be tried by courts martial where a civil court could act. Persons who voluntarily chose to attach themselves to the Army would know the liability to which they subjected themselves, and could not expect to be dealt with in any other manner than other persons who were under military law. He was really at a loss to understand what was aimed at by this Amendment, unless it had in view the case of newspaper correspondents.

§ SIR ALEXANDER GORDON
said, that the Amendment was intended to protect the numerous class of persons who followed an Army in the field.

§ COLONEL STANLEY
remarked, that if such persons did not form a part of the Force, they were not liable to come under the provisions of the Act. And if they formed part of the Force, he could not imagine anything more inconvenient than that persons who received advantages, such as being mounted, or having facilites granted to them, and yet should be able to turn round and say, " You have no control over us." He could not conceive anything more inconvenient than the adoption of such a course; particularly, as the Committee had already 479 included camp followers amongst persons subject to military law.

§ SIR HENRY HAVELOCK
said, there was a distinction which the hon. and gallant Member desired to draw, and which he thought the Committee would also draw. He took it that the distinction which was intended to be drawn was one which did not, in any degree, militate against the maintenance of discipline, or of that discipline which was applied to the persons in a civilian capacity serving with an Army in the field. The distinction he wished to make was that, whereas, in the clause further on, all persons following the Army were taken without discrimination, the hon. and gallant Gentleman wished, in the case of newspaper correspondents, or artists, or photographers, that those persons should, without making any invidious distinction, be put on a different footing from camp followers and persons who attached themselves to the Army for the purpose of selling drink to the soldiers. The hon. and gallant Gentleman wished to make a distinction between those classes of persons in the manner in which military law should he applicable to them. For his part, he could not conceive any practical difficulty in drawing the distinction which it was desired to make. It was desired, in the case of superior persons following the train of an Army, to render them liable to be dealt with by military law as officers, and not to be subject to trial by a district court martial, which was an inferior court, intended only to try private soldiers. He thought that the right hon. and gallant Gentleman would be able to see his way to accept the principle of the Amendment, for there could be no possible objection to making the distinction. In the case of a large Army in the field, if any person holding the relative position of an officer committed an offence which it was deemed necessary to try him for, there would be no difficulty in assembling a sufficient number of officers to constitute a general court martial. In every succeeding year a larger number of civilians of a superior class accompanied Armies in the field, and the hon. and gallant Member for Aberdeenshire did not desire that they should be placed indiscriminately in the same class as common camp followers, whom the Act allowed to be dealt with summarily. 480 There was a necessity for drawing a broad distinction between the two classes of persons, and to subject each class, when necessary, to military law.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
was totally ignorant of the way in which the distinction was to be drawn, or what were the different classes between which the hon. and gallant Member desired to draw the distinction. What was the relative rank or position of an officer? Did the photographer, or the photographer's man, hold such a place, or did they both hold it? So far as he could understand, the position of an officer in the Army was quite clear, and admitted of no doubt; but if they drew this very arbitrary and wholly artificial distinction as to the relative rank or position of an officer, he wished to know where they could draw the dividing line? It seemed to him that it would be wholly impossible in practice to say what class of persons held the relative rank or position of officers.

§ SIR ALEXANDER GORDON
said, that, perhaps, the matter was very amusing to the hon. and learned Gentleman; but he could inform him that the class of persons who hold the relative rank and position of officers was laid down by the Queen's Regulations. Some civilians ranked as majors, some as colonels; and there were civilians attached to Armies who received pay and allowance according to their relative rank. They were followers of the Army who would, under this clause, unless it was amended, be liable to be tried as private soldiers.

§ COLONEL STANLEY
said, that the hon. and gallant Gentleman would carry out his object more effectually, if he were to move this Amendment on Clause 106. He was at a loss to understand what the hon. and gallant Gentleman intended, or how he proposed to define which civilians were in the relative position of officers and which were in the position of soldiers. It was open for the Amendment to be moved on the 166th clause. As he understood the matter, these persons did not form any part of an Army in the field, nor did they hold any commission; but their status was to be decided by some process which he was at a loss to understand. If he were in Order, he would refer to Sub-section 7, which said that every person not other- 481 wise subject to military law accompanying an Army in any official capacity was subjected to certain provisions. It would be legitimate for the hon. and gallant Gentleman to add to that subsection words to meet the case of the persons he had in view. But to insert his Amendment there, would lead to great inconvenience and confusion.

§ MR. HOPWOOD
said, that if his hon. and learned Friend the Solicitor General had clone them the honour of listening to their argument, he would not have made the observations he had done. His hon. and gallant Friend wished to put in some definition to take a certain class from the cognizance of the district court martial; and he had mentioned several instances of persons who would be brought under the operation of the clause. It had been further pointed out, by his hon. and gallant Friend the Member for East Aberdeenshire, that this was an entirely new provision, and that up to that time any discipline, with regard to civilians accompanying an Army, had been left entirely in the hands of the Commander-in-Chief of the Forces in the field. The House was now undertaking to legislate in this matter, and it was desirable to see exactly what it was doing. They provided that a district court martial should not try an officer; and, therefore, it should be provided that it ought not to try a civilian of the rank of an officer. His hon. and gallant Friend might be hampered with difficulty in giving a precise definition of the class whom he intended; but, because there was a difficulty in meeting their case, it by no means followed that these persons should be treated unjustly. Clause 166 defined officers who were exempted from the provisions of this clause by its express words. Officers were defined to mean— Every person not otherwise subject to military law who under the orders of a Secretary of State or of the Governor General of India accompanies in any official capacity any of Her Majesty's troops on active service in any place beyond the seas, subject to this qualification, that where such person is a native of India within the meaning of Indian military law, he shall be subject to that law as an officer. But the definition of persons "not otherwise subject to military law" as soldiers included newspaper correspondents; and if the clause were left as it stood, any artist or newspaper correspondent accompanying an Army would be subject 482 to military law, and liable to be tried by a district court martial. If this were the effect of the clause, he should be in favour of doing away with it altogether; but if the Government insisted on retaining it, he contended that they ought to go further, and make the distinction that was sought to be drawn.

§ SIR HENRY HAVELOCK
remarked, that the operation of this clause could be readily seen. If the right hon. and gallant Gentleman himself chose to accompany an Army in the field he would be accompanied, probably, by a servant, and that servant would be, by the Act, subject to military law, and liable to be tried by a district court martial. But the right hon. and gallant Gentleman himself would also be in the same position. Would be like to be tried in the same manner as his servant? This was precisely the distinction which his hon. and gallant Friend was desirous of drawing. It would be quite sufficient to mention, as an instance of the distinction to be drawn, persons who were authorized by the Secretary of State to accompany an Army in the field. The only object in raising this question was to apply to a certain clause, to civilians who accompanied an Army in the field, the provisions to which they were entitled. If the right hon. and gallant Gentleman would introduce into the sub-sections of Clause 48, or into sub-section 7 of Clause 166, words carrying out these distinctions, they would be quite content. If an assurance to that effect was not given, he should go to a division with his hon. and gallant Friend in favour of his Amendment.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
was wholly unable to understand what was intended to be settled by this Amendment, when it was said that not only an officer, but a person holding the relative rank or position of an officer should not be tried before a district court martial. What was the relation of the one person to the other? What were their relative positions? The matter depended upon something entirely outside of any distinctions which existed in the Bill; but, whether any such distinctions could be drawn or not, the time for dealing with these matters would obviously arise when they were on the clause defining officers. The words in question were intended to settle something; but, in reality, they settled 483 nothing, but left the section a very difficult one to understand. For these reasons, he trusted that the Committee " would not consent to the Amendment.

§ MR. BIGGAR
thought that the hon. and learned Gentleman should not raise any difficulty to the very reasonable suggestions that had been offered. If he remembered a case which happened a short time ago, the distinction that was sought to be drawn would be apparent to him. He referred to the case of a correspondent of The Standard newspaper. Much controversy occurred between the general in command of a Force in Afghanistan and this correspondent, as to the way in which the correspondent should send news. The general thought that the correspondent should send only such news as was favourable to his own character as a military commander; but the correspondent thought he should describe things pretty much as they really were. In future, immediately such a controversy arose a general of this kind could at once order a correspondent to be put on his trial before a district court martial. The Amendment proposed by the hon. and gallant Gentleman would render a general much more careful in putting a correspondent of a first-class newspaper upon his trial for any offence. It was not possible to lay down in words the precise definition aimed at; but he thought the Amendment proposed very clearly defined the general idea, and would be found to work well in practice.

§ SIR WILLIAM HARCOURT
said, that if hon. Members would turn to Clause 166 they would see that there was a definition of persons subject to military law as officers. The clause was as follows:— The persons in this section mentioned are persons subject to military law as officers, and this Act shall apply accordingly to all persons so specified; that is to say. Then the sub-section went on to define the various classes of officers, and subsection 7 was to this effect— Every person not otherwise subject to military law who under the orders of a Secretary of State or the Governor General of India, accompanies in any official capacity any of Her Majesty's troops on active service in any place beyond the seas, subject to this qualification, that where such person is a native of India within the meaning of Indian military law, he shall be subject to that law as an officer. Thus it would be seen that all persons 484 accompanying an Army in the field in an official capacity, under the orders of a Secretary of State or the Governor General of India, possessed all the benefits, and were subject to all the liabilities of officers. What he wanted to know was, whether they could not go further than that, and treat as officers everyone who had no official recognized position? He did not see how persons having no official recognized position could be treated as officers. How was a correspondent, or any other man, to be considered to have official capacity, unless he were recognized by a Secretary of State, or by the Governor General of India? If a man went in an officially recognized position he would be treated as an officer; but, if not, he did not see how he could be put in the position of an officer. The hon. and learned Member for Stockport (Mr. Hopwood) would find that the case of special correspondents of newspapers was provided for, and that they were triable in India exactly as they would be under this clause in England. By the existing Mutiny Act newspaper correspondents were triable in all respects, as camp followers were in India. They were liable to the Mutiny Act, as everyone else following the Army was. There was no exceptional position accorded to them. Clause 166 seemed to him to draw the only distinction they could draw— namely, between persons having an officially recognized position and those who had not. Without they had that recognized position the clause applied to them; but when they did not come under Clause 166, they could be treated only as persons not otherwise subject to military law who followed, or accompanied, the troops, and were, to that extent, in the position of private soldiers.

§ SIR HENRY HAVELOCK
said, his hon. and gallant Friend had correctly pointed out that correspondents with the Army in India were under official protection. Hon. Members were now desirous of knowing how this could be extended to places outside India. There were many civilians serving with the Army in Afghanistan who had not so provided themselves. There was Mr. Archibald Forbes, and others not equally well known, who would be affected by this clause.

§ SIR WILLIAM HARCOURT
; Let him get an order.

§ COLONEL STANLEY
contended that under the sub-section 7, both classes of persons were provided for. He did not think it was too much to claim that a person in the status of an officer, allowed to feed and lodge in camp, should be subject to this arrangement.

§ SIR ALEXANDER GORDON
said, in the Mutiny Act the words used had always been an "officer and soldier; " but all through this Bill these words had been altered, and the words used were "persons subject to military law." That was a very different thing, and included the class of persons whom he mentioned. This Bill altered the whole condition of things. He only wished the Committee to be aware of the condition of things, so that it might know what it was doing. This, perhaps, was a matter which could be discussed when they came to the Interpretation Clause; but, in the meantime, ho would suggest that "soldier" be used here, instead of "persons subject to military law."

THE CHAIRMAN
asked, did the hon. and gallant Member propose to withdraw his Amendment?

§ SIR ALEXANDER GORDON
I shall withdraw the Amendment, if the right hon. and gallant Gentleman accepts my suggestion.

§ MR. HOPWOOD
said, it was provided that the district court martial should not try an officer. "Well, ought it to try, say, a Mr. Kinglake, gathering the ideas for the history of the future? Did the right hon. and gallant Gentleman mean to say that he wished to have Mr. Kinglake tried by a district court martial? The answer might be that he had rank enough to get an order from the Secretary of State; but this answer did not meet the difficulty. The term "correspondent" was used because it was a convenient word. Men of rank might attend the Army from some laudable motives; and, therefore, he thought the case for the Amendment had been made out.

§ SIR WILLIAM HARCOURT
hoped his hon. and learned Friend would give the Committee assistance how to distinguish between a person of rank and, say, a sutler in the Army. The question was, how to draw the line? The difficulty was, when they came to matters of opinion, whether a man belonged to one class or to another? The hon. and 486 gallant Member for East Aberdeenshire said that the Mutiny Bill only applied to officers and soldiers. He was in error there. Already, the Indian Forces had been pointed out as an exception. In India, especially, the 1st clause applied to every camp follower. [Sir ALEXANDER GORDON: I quite admit that.] That was so in point of principle. He wished to call the attention of the Committee to the fact that if the Bill was examined, it would be found that really very few of the clauses could refer to anyone but an officer or soldier. If they looked at the 4th and 5th clauses, they would see how very few clauses there were which could apply to anyone who was a civilian. When they came to the few clauses which referred to civilians, why should they not apply to them as well as to soldiers? Why should not a civilian be tried by a district court martial as well as a soldier, if the civilian picked a pocket or committed, some other theft? He asked the hon. and learned Member for Stockport to run through the clauses and see what clauses there were to which civilians were subject. He would find very few indeed. If it was said that certain civilians were too great swells to be tried by district courts; if men like Mr. Kinglake, to whom his hon. and learned Friend referred, were not to be subject to the clause, then let them pass an Act of Parliament exempting Mr. Kinglake. The Government had tried that in Clause 166. If that was not enough—if the definition was not sufficient—let there be another; but, up to the present time, nobody had made a practical suggestion as to what was to take the place of the definition already given by the Government.

§ SIR HENRY HAVELOCK
said, it was a marvel of marvels to him that his hon. and learned Friend had not apprehended the distinction hon. Members were desirous of drawing. He could only attribute it to the fact that the hon. and learned Gentleman was not present when the hon. and gallant Member for East Aberdeenshire was addressing the Committee. They were told to draw a distinction. But the distinction was ready for them in the words which the hon. and gallant Member had introduced in sub-section 4, Clause 48. All that he desired was this—that in the case of certain persons of a superior social condition, who were permitted to accom- 487 pany troops in the field, they should make a distinction which did not affect the degree of the crime committed. There was no difficulty whatever about that—" all persons holding the relative rank or position of an officer." If the acute legal minds which had been dealing with this matter had not by this time apprehended the simple and elementary distinction which was sought to be made, he must despair of the further progress of this Bill.

MR. O'CONNOR
POWER said, he quite agreed that upon the proposer of an Amendment rested the responsibility of inventing the necessary description of what was desired. Clause 166 stated that " one who accompanies in an official capacity any of Her Majesty's troops on active service." What objection could there be to inserting those words here, after the word " officer? " What objection was there to saying that a district court martial should not try an officer, or one who accompanied in an official capacity Her Majesty's troops on active service? He could not see what objection there was to the insertion of this Amendment in the clause.

§ SIR WILLIAM HARCOURT
said, there was no objection, but that it was done already. It would simply include those who were included in Clause 166.

§ SIR ALEXANDER GORDON
said, he had already stated that he was willing to postpone this matter until they came to Clause 166. He should withdraw the Amendment as it stood, and move, instead, to omit the words "persons subject to military law," and insert the word " soldier."

§ SIR WILLIAM HARCOURT
moved to omit the word "officer," and insert the words " persons subject to military law as an officer."

§ COLONEL STANLEY
said, he had no objection to that.

§ MAJOR NOLAN
said, the correspondents of such a paper as The Times, and also of The Daily News, had been considered in the light of an officer, and treated as officers. It would be a nice position to take up to say that they were not to be treated as officers. That would be putting a very nice point to a court martial; and it was not fair to throw upon that court the duty of interpreting the point. He thought Ministers ought 488 to state what would be the course if a military correspondent was brought before a court martial under this clause. He thought there was a primâ facie case that a correspondent was in the position of an officer. He was treated as an officer. He had that social position in the camp

§ COLONEL STANLEY
said, he had no doubt, in his own mind, that Clause 166, sub-section 7, would govern the case. He appealed to the Committee now to go on. He thought the point could be cleared up on Clause 166. He did not believe that it wanted clearing; but Clause 166 was open to those who thought that it did. The Amendment required consideration, and he hoped it would be withdrawn.

§ SIR HENRY HAVELOCK
pointed out that the words proposed to be introduced by the hon. and learned Member for Oxford (Sir William Harcourt) should, in his opinion, follow the word " officer," and not the word " try."

§ SIR WILLIAM HARCOURT
explained that the Amendment included all officers. He was not of opinion that sub-section 7 of Clause 166 covered the case of newspaper correspondents; because he could not conceive that a newspaper correspondent would ever be a person who accompanied the Army in any official capacity under the orders of the Secretary of State.

MR. O'CONNOR POWER
understood that the Amendment would exclude officers.

THE CHAIRMAN
pointed out that the word "officer" was already in the clause.

MR. O'CONNOR POWER
thought the distinction would be clearer if the words "nor persons subject to military law as officers" were inserted after the word " officer." If the Committee inserted the Amendment, as suggested by the hon. and learned Member for Oxford, and said—" A district court martial shall not try any persons subject to military law as an officer," the distinction would not be clear. He, therefore, suggested that the hon. and learned Gentleman should insert his Amendment after the word " officer," so that it should be clear that a district court martial should not try an officer, and that it should be equally clear that it should not try a person as an officer.

§ SIR WILLIAM HARCOURT
replied, that there would be a redundancy of ex- 489 pression in the form proposed by the hon. Member for Mayo.

§ MAJOR NOLAN
said, that the effect of the Amendment would be to raise a nice point of military law for future courts martial to interpret.

§ COLONEL STANLEY
had no doubt that Clause 166, sub-section 7, provided for the case of newspaper correspondents; but he would accept the Amendment of the hon. and learned Member to make the matter more clear.

§ SIR ALEXANDER GORDON
said, that the consequence of the Committee having adopted the last Amendment was to render it absolutely necessary to alter the wording of the Amendment which he proposed to introduce three lines further down. He, therefore, moved to omit the words "person subject to military law, and triable by court martial," in order to insert the word " soldier."

§ SIR WILLIAM HARCOURT
objected to the Amendment. The Committee had already said that persons subject to military law as officers should not be tried by district court martial, and they were now asked to say that persons subject to military law, not as officers, should be tried by district court martial.

§ SIR ALEXANDER GORDON
moved, in page 23. line 25, to leave out the word " captain," and insert the words— '' Field officer, unless it be impossible to obtain the requisite number of field officers, in which case not more than one captain shall be a member of the court; and in no case shall a junior officer of the regiment to which the field officer under trial belongs be a member of the court. The object of that Amendment was to make this Act agree with the existing rules of the Service. By the existing regulations of the Service, no captain could sit upon a court martial for the trial of a field officer unless it was impossible to get a sufficient number of field officers, and to that very proper custom he (Sir Alexander Gordon) wished to adhere. By the alteration made in this Bill, however, a field officer could be tried by a court martial composed entirely of captains. In his opinion, it was most undesirable that a large number of junior officers should assemble to try a field officer; because it had always 490 been the custom that officers should be tried by their peers. He could not understand why the word "captain" had been introduced into this Bill, instead of " field officer."

§ MR. BRISTOWE
pointed out, that if these words were introduced in the order in which they stood, the sub-section would be unintelligible.

§ MAJOR NOLAN
replied, that the construction was perfectly simple; the Amendment made it imperative on the general to have no officers on a court martial for the trial of a field officer below the rank of field officer if they could possibly be obtained. Perhaps the hon. and gallant Member for East Aberdeenshire would agree to two captains instead of one, and propose, in the last part of his Amendment, that— In no case shall a junior officer of the regiment to which the field officer under trial belongs be a member of a court. It was a very improper thing to put junior officers upon these courts martial, and was, besides, most unfair to the other members of the court.

§ COLONEL STANLEY
could not accept the Amendment. The 166th Article of War excepted only officers under the rank of lieutenant from being members of courts martial for the trial of field officers.

§ SIR ALEXANDER GORDON
wished to alter the wording of his Amendment.

THE CHAIRMAN
pointed out, that it would not be competent to amend the proposed Amendment, unless the Committee had decided to omit the word " captain."

MR. O'CONNOR POWER
wished to propose the Amendment standing in the name of the hon. Member for Dundee (Mr. E. Jenkins). He, therefore, begged to move that the words " outside the United Kingdom " be substituted for the words "beyond the seas;" and he thought that the right hon. and gallant Gentleman the Secretary of State for War might, perhaps, see his way to the adoption of that Amendment, inasmuch as the expression " outside the United Kingdom " was less open to doubt and misunderstanding than the expression "beyond the seas."

§ COLONEL STANLEY
had no objection to the proposed Amendment; but if the hon. Member would look to the bottom of page 106, he would find the expression " beyond the seas " was there defined to mean out of the United Kingdom, the Channel Islands, and the Isle of Man.

§ SIR HENRY HAVELOCK
proposed, after line 29, page 24, to introduce a precautionary clause which must have been omitted through an oversight— namely, to restrict the powers of general field courts martial by a provision which existed in the old Act. He proposed to insert, in page 24, line 29, after the word "award" — Provided always, That no sentence of any court martial shall be executed until the General commanding the Army of which such detachment or portion forms part shall have approved and confirmed the same. It never could have been intended by those who framed this Bill that this precautionary clause should be omitted. The Bill had been too much cooked, and erred in excessive drafting. The latter part of the sub-section said— A field general court martial may, notwithstanding the restrictions enacted by this Act in respect of the trial by court martial of civil offences within the meaning of this Act, try any person subject to military law who is under the command of the convening officer and is charged with any such offence as is mentioned in this section, and may award for such offence any sentence which a general court martial is competent to award. He would apply this to the case of the civil disturbance or commotion which occurred in Jamaica some years ago. It would have been competent for the officer convening a general field court martial under this clause, and which might be restricted to three members, not only to sentence persons who, for the time being, came under military law to imprisonment, but it would have been competent to the convening officer, not necessarily the highest authority in the district, to pass a sentence affecting the life of an individual. If his reading of the clause were correct, it was obvious to anybody that his Proviso was a necessary safeguard, which, without restricting the operation of military law in certain places, otherwise not subject thereto, would maintain a 492 security for the life of the subject; for when an individual had been sentenced to death, it would be necessary that his sentence before execution should be referred to the general officer, or others in supreme command of the Army, of which the court that tried him formed only a small part.

§ COLONEL STANLEY
said, the substance of the Amendment of the hon. and gallant Member for Sunderland was already in the Bill. He presumed that the words "no sentence of any court martial shall be executed," &c, meant that it could not be executed until it was confirmed. The hon. and gallant Gentleman would see that this was already provided for in sub-section d of Clause 54, which said— In the case of a field general court martial, an officer authorized to confirm the findings and sentences of general courts martial for the trial of offences in the force of which the detachment or portion of troops under the command of the convening officer forms part. He had no objection to the insertion of the Proviso; but suggested that its object was covered by the sub-sections to which he had referred.

§ SIR HENRY HAVELOCK
was of opinion that the sub-section alluded to did not cover the point raised.

§ COLONEL ALEXANDER
said, that detachment general courts martial were first instituted after the battle of Vittoria, in the year 1813, when the Duke of Wellington found himself obliged to make use of them, for the purpose of repressing plundering and outrages upon women in Spain. It was because it was impossible to drag to the head-quarters of the General these women who had been outraged, that evidence had to be taken on the spot where the court martial was held; but before sentence was carried into execution, it was referred to the General commanding that portion of the Army of which the court martial formed a part.

§ SIR GEORGE CAMPBELL
said, that in the case of serious offences it was right to have some such provision as that suggested by the hon. and gallant Member for Sunderland. He understood that the clause provided for cases for the trial of which a civil magistrate was not available, and which would, therefore, be tried by court martial. Understanding that this clause was for the protection of the inhabitants of the country, and sup- 493 posing that some petty offences were committed against them, was it intended in such case that no punishment could he inflicted upon the offenders without reference to the General commanding the Army? If so, the proceeding would be cumbrous in the extreme.

§ COLONEL ALEXANDER
explained that the offenders could be tried without reference to the General, but could not be executed.

§ SIR GEORGE CAMPBELL
said, however necessary punishment in small cases might be, it would be rendered almost impossible to inflict it under these circumstances.

§ MAJOR NOLAN
pointed out that this particular disqualification applied only to the extraordinary tribunal of field general court martial.

MR. O'CONNOR POWER
said, even if the Amendment proposed by the hon. and gallant Member for Sunderland were adopted, it would be no guarantee that such scenes as occurred in Jamaica would not be repeated. One great object of the Amendment was that the officer who approved the decision of the court martial should act under a sense of responsibility. The object in view now was to place responsibility on the General commanding the Army, who, as in the case of the commanding officer, so to speak, in Jamaica, might be able to escape from responsibility for want of the provision which the hon. and gallant Member for Sunderland wished to supply. He would like to know what objection there could be to the proposed Amendment, the object of which was to fix responsibility upon the most responsible person?

§ SIR GEORGE CAMPBELL
said, that so far as he was able to understand the clause, an officer or a soldier who committed an offence might be tried under its operation by a tribunal which was somewhat in the nature of a drum-head court martial, even when the troops were not on active service. That, he thought, was a sort of tribunal which ought not to be set up in a part of Her Majesty's Dominions, which, perhaps, might be in a most quiet and peaceable state.

§ COLONEL STANLEY
said, the object of the clause was to protect the civil population of a country through which 494 troops happened to be passing in those cases in which, from want of time, or for some other reason, it was found impossible to appeal to the Civil Law. A field general court martial was an extraordinary tribunal, to which it would not be necessary often to have recourse, but which it was extremely desirable there should be the power of convening in certain circumstances.

§ SIR GEORGE CAMPBELL
said, he was quite aware that that was the object of the clause; but, in his opinion, it was so worded as to give it a scope which was unnecessarily wide; and, therefore, he would venture to suggest the insertion at the end of the clause, providing that effect should not be given to it unless the troops were engaged on active service, or that the offence was committed at a place which was too distant from the ordinary tribunals of the country to admit of the offender being brought before them.

THE CHAIRMAN
said, that the hon. Member would not be in Order in moving his proposed Amendment now, inasmuch as the Question before the Committee was, that the clause, as amended, stand part of the Bill.

§ COLONEL STANLEY
moved to insert, in page 24, line 38, at the end of the clause, as a separate paragraph, the following words:— '' The commanding officer of a corps to which a prisoner belongs, or the officer who investigated the charges on which a prisoner is arraigned, shall not, save in the case of a field general court martial, sit on the court martial for the trial of such prisoner, nor shall he act as judge advocate at such court martial.

§ SIR ALEXANDER GORDON
said, he had an Amendment to propose to the Amendment, which was, to leave out the words '' save in the case of a field general court martial." It was contrary, he said, to all the principles of English military law, as it had existed almost up to the present time, that an officer who convened a court martial, and who had investigated the charges on which a prisoner was arraigned, should be a member of it. In 1854, however, a change was made by which an officer who convened a court martial might sit as a member of it. The law which previously existed was, however, 495 in his opinion, much more just in principle; and he, therefore, begged to move the omission from the Amendment of the words "save in the case of a field general court martial."

MR. O'CONNOR POWER
moved to insert, in page 24, line 40, after the word "object," the words— In a general court martial to any three officers, including the president, without reason given; in the case of a district court martial to any two officers, including the president, without reason given; and in the case of a regimental court martial to one officer, who may he the president; and afterwards. The hon. Gentleman said, a portion of the Amendment had, he believed, been already disposed of, by a decision at which the Committee had arrived in allowing a right of absolute challenge to a prisoner in the case of general courts martial. That decision would not, however, so far as he understood the matter, preclude the Committee from adopting the whole of the Amendment which he now proposed. It might be said that the giving a prisoner a right of absolutely challenging, without reason given, so many members of a tribunal which was composed of so limited a number of persons, might be productive of serious inconvenience; but he should not, if the Committee should be of that opinion, adhere literally to the terms of his Amendment, and he had moved it merely with the view of affording the Committee an opportunity of expressing their views on the matter. The Amendment was, he thought, well worthy of their attention. It should be borne in mind that in the case of a common soldier who was brought before a court martial he was not tried by his peers, and that, in that respect, be laboured under a disadvantage, to which he would not be exposed if he were being tried for a criminal offence before a civil tribunal. In the case of a court martial he was tried by officers, and not by his peers; and that was a point in regard to which it was, he thought, too late to seek to alter the decision to which the Committee had come. It was, however, in his opinion, highly desirable, in order to inspire confidence in courts martial, that a prisoner should 496 have the right of challenging absolutely one, or two, or three of the members of any particular court martial. The proportion might, he thought, very well be three in the case of a general court martial, which would consist of a maximum number of nine and a minimum of five members. If three were considered too many to empower a prisoner to challenge, the number might be reduced. Then, in the case of a district court martial, which would be composed of a maximum of seven and a minimum of three members, the right of challenge might, if the Committee deemed it necessary, be confined to one member of the court. He felt it to be his duty to press the matter on the attention of the Committee, because it was but just and fair, in his opinion, that some concession should be made to the legitimate claims of the soldier, and that he should not be left so completely at the mercy of those courts, as he would be if the Amendment were not agreed to. It must be quite intelligible to the Committee that a soldier might know very well that an officer was prejudiced against him, although he might not be able to make out such a case against him to his brother officers as would enable them to say whether an objection to his sitting as a member of the court had been properly raised or not. The clause provided that every objection made by a prisoner to any officer should be submitted to the other officers appointed to form the court; and it would all depend upon a prisoner being able to substantiate his objection whether it would be accepted by the court or not. Under those circumstances, the position, he contended, in which the common soldier was placed was one of great disadvantage and of possible hardship; and he hoped the right hon. and gallant Gentleman the Secretary of State for War would seriously give his mind to the subject.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
could not help thinking that the Amendment which had just been moved was a very unreasonable one to seek to introduce into the clause, and the hon. Gentleman who proposed it had, he thought, somewhat overstrained the analogy which he drew between the mode of proceeding in our Civil Courts and that which he wished to establish. The clause, as it stood, provided that objection might be made by a 497 prisoner who was about to be tried by a court martial, for any reasonable cause, to the President or any other member of it; but the hon. Gentleman now proposed to give the soldier a peremptory right of challenge, entirely apart from the necessity of alleging any reasonable ground for his objection. That, in his opinion, was a power which it would be very unadvisable to give. It would tend unduly to limit the operation of courts martial. The language of the clause was intelligible enough; but if the wide signification desired by the hon. Member for Mayo were given to it, and if the analogy of the proceedings in Civil Courts were to be acted upon, it would be necessary to go into the question of what was a legal and technical objection, and much unnecessary inconvenience and delay would be the result. He hoped, therefore, the Committee would not accept the Amendment.

§ MR. BIGGAR
did not think the hon. and learned Gentleman had at all succeeded in mating out a case against the adoption of the Amendment. It was most important, in the ease of a trial for any offence, that all parties should be satisfied that justice would be done; but no such confidence would exist if a prisoner who was brought before a court martial did not possess the right of challenge to a member of the court whom he had reason to believe was not in a position to pronounce an impartial judgment upon his case. It was very well known that in many instances a soldier was perfectly well aware that an officer had some spite against him, and it would be most unfair that such an officer should be placed in the position of one of his judges. Matters were very different in the ordinary Criminal Courts where there were Judges, and the Law Officers of the Crown, who were, of course, much more likely to arrive at an impartial decision than it could be expected the brother could be of a man to whose sitting on a court martial a soldier might very properly object. Besides, a prisoner might not be able to adduce such evidence as would be sufficient to convince the other members of a court martial that a particular officer was prejudiced against him.

§ COLONEL ALEXANDER
pointed out, that the proposal embodied in the Amendment was one which it would be very difficult to carry into effect. It would, 498 in his opinion, so operate as to cause very serious expense and delay; for it would often happen that when a number of officers had assembled for the purpose of holding a court martial, they would find that they would be unable to proceed with the business before them. Again, one court martial might be ordered to try several prisoners, and one prisoner might challenge two members of the court, and the next prisoner might object to two others, and a third to two more, so that the court would not be able to hold its sittings.

MR. O'CONNOR POWER
said, he must admit there was a certain degree of force in some of the objections which had been urged against the Amendment. All that he desired to impress on the Committee was that enforcing a regulation which would deprive a prisoner of the right of challenge without the necessity of giving a reason, they would be placing him in a very unfair position. The hon. and learned Gentleman the Solicitor General seemed to think he had no right to refer to the analogy of the Courts of Law in support of his argument; but why, he should like to know, should it not be competent to him to do so? Courts of Law were Courts of Justice; and it must surely be the object of the Government to establish impartial tribunals under the Bill. The hon. and learned Gentleman had referred to the words " any reasonable cause; " but those words in the clause did not refer to what might be a reasonable cause in the opinion of a prisoner, but in that of the brother officers of the very officers to whom he might have taken objection. It rarely happened that objections of the kind were sustained by those brother officers; and, under the circumstances, some such Amendment as that which he proposed was, he maintained, required. If it were deemed to be too great a power to give a prisoner that he should have the right of challenging three officers on a general court martial, he should be willing to substitute the word " two " for "three," and to limit the right of challenge in the case of district courts martial to one. From the way, he might add, in which the hon. and learned Gentleman the Solicitor General seemed disposed to deal with the case, he saw no course open to him but to take the opinion of the Committee on the question. It would be too bad, he 499 thought, that such a clause as that under discussion should be agreed to, and that no protest should be recorded against the system of putting a common soldier on his trial without giving him any right of challenge whatsoever. He was quite prepared, however, to withdraw the Amendment as it now stood, and to move it in an altered form.

MR. O'CONNOR POWER
then moved, in page 24, line 40, after "object," to insert— In a general court martial to any two officers, including the president, without reason given; in the case of a district court martial to any one officer, including the president, without reason given; and afterwards.

§ MAJOR NOLAN
moved, in page 25, line 42, to leave out " 1879," and insert " now in force."

§ MAJOR NOLAN
moved, in page 25, line 42, before " without partiality," to insert " and the custom of war in the like cases," which had reference, he said, to the form of the oath which was to be administered to members of courts martial. He did not attach so much importance to this Amendment as to that to which the Committee had just given their assent; and he would content himself with merely offering it for the consideration of the Secretary of State for War and the Committee.

§ MR. CAVENDISH BENTINCK
pointed out that in the Committee which sat three years ago upstairs a division was taken as to whether the words now proposed in the clause should be retained in the oath, and that they 500 decided, by a large majority, that it was not desirable to make any alteration in it.

§ MAJOR NOLAN
said, he hoped some better reason against the adoption of the Amendment would be given than that which the Committee had just heard. He attached very little weight to the recommendations of the Committee to which the Judge Advocate General referred, and, in moving his Amendment, he was supporting that which was an old and well-established form.

§ GENERAL SHUTE
quite concurred in the view of the hon. and gallant Gentleman the Member for Galway (Major Nolan), and saw no objection to the old form of oath.

§ SIR ALEXANDER GORDON
said, he, too, much preferred the old form.

§ COLONEL STANLEY
said, that the objection to the oath, as it was formerly framed, was that it was considered to be somewhat vague.

§ MAJOR NOLAN
could not help thinking that it was not a wise or a proper course to adopt to overrule altogether the custom of war. There had of late been constant discussions in that House as to whether our soldiers always behaved with humanity in the Zulu War, and it was not well, in his opinion, to break away from old traditions. It was a great mistake, by giving up the old form of oath, to set aside all the common law of the Army, and to rely entirely upon Statute law. If the words which he proposed were not inserted in the clause, there were a great many men who would think that they were within the four corners of the Bill, and who would act upon that view.

CAPTAIN MILNE-HOME
wished to know why the form of oath which was to be administered by the Judge Advocate General or his deputy to the witnesses before a court martial, was not set forth in the Bill? He begged, in page 26, line 14, to leave out the words "the prescribed form," and to insert, instead of them, "the form prescribed in the first Schedule of this Act."

§ COLONEL STANLEY
said, the words "prescribed form" in the clause had reference to rules and regulations which were to be made, and which would be laid before Parliament as soon as was 501 practicable. If the hon. and gallant Gentleman would read Clause 69, he would find that power was taken in it to frame rules of procedure in connection with several points relating to trials by courts martial which it was impossible to include in a Bill.

CAPTAIN MILNE-HOME
said, that after the explanation of the right hon. and gallant Gentleman, he had no wish to press the Amendment.

§ SIR GEORGE CAMPBELL
wished, before the Amendment was withdrawn, to ask for some further information with respect to the clause. It provided that— Every witness before a court martial shall be examined on oath, which the president or other prescribed person shall administer in the prescribed form. But suppose a witness happened not to be a Christian, but a member, for instance, of the Jewish or Mahomedan persuasions, to whom it was not usual to administer an oath, how was his evidence to be taken; was he to be examined in accordance with the form prescribed by his religion?

§ MR. CAVENDISH BENTINCK
said, that if the hon. Gentleman would look at the Articles of War, he would find that there were certain forms of oath to be taken by Jews and Christians. The point raised was one which would come within the scope of the Rules which would be laid on the Table.

§ SIR ALEXANDER GORDON
said, he wished to move to insert, after subsection 8, the following sub-sections: — 9. Trials by court martial shall be held between the hours of eight in the morning and four in the afternoon, except in India, where trials may be held between the hours of six in the morning and four in the afternoon. Provided, That if the court considers it necessary they may continue any trial beyond the hour of four in the afternoon, recording in the proceedings the reasons for their so doing. Provided also, That in cases requiring an immediate example, or when the general or other officer commanding any body of troops shall certify under his hand that the same is expedient for the public service, trials may be held at any hour; but in no case shall any court martial sit for a longer period than eight hours in any one day. 10. When a court martial shall recommend a prisoner to mercy, such recommendation shall be attached to and form part of the proceedings 502 of the court, and shall be promulgated and communicated to the prisoner, together with the finding and sentence. 11. In no case shall any officer sit as president or member of a court martial who has been employed to investigate the matter out of which the charge before the court arose. The hon. and gallant Gentleman said, as the Bill stood, no mention was made in it of the recommendation to mercy; and if it were to form no part of the proceedings of the court, a prisoner might know nothing about it. It would be a hardship, he thought, that when the court was disposed to take a lenient view of a man's case, the fact should not be publicly known. He was also of opinion that it was highly desirable to limit, as he proposed, the duration of the sittings of courts martial.

§ COLONEL STANLEY
hoped the hon. and gallant Gentleman would not think that he wished to offer any frivolous objection to his Amendment, when he said that the points with which it dealt, being like so many other matters of procedure, he did not think it would be well to provide for them in the Bill itself. It would be much better, in his opinion, to deal with them by regulation. As to the hours during which a court martial should sit, the Amendment, if carried, might produce consequences which would sometimes be found very inconvenient. He himself recollected a case in which the restriction of the hours of sitting might have caused a good deal of inconvenience, for there was a great deal of work to be got through, and the whole of the officers who composed the court had come from different parts of the country, and some had to attend other courts martial the next day. Analogous cases very often occurred; and therefore he hoped the hon. and gallant Gentleman would not, at all events, press that part of his Amendment. As to the recommendation to mercy, that stood upon rather different ground. He might point out that to recommend a prisoner to mercy was by no means a function of the court, whose duty was to decide upon the guilt or innocence of a prisoner; and it was a sound principle, he thought, that the recommendation to mercy should not be connected with the finding or sentence of a court martial, for it, properly speaking, belonged to the exercise of the Royal Prerogative. It was no part of the duty of the court, 503 so far as he could see, to promulgate and communicate to a prisoner the fact that he had been recommended to mercy; nor would it be wise, in his view of the matter, to provide that a recommendation should be so promulgated, which it might not, in some cases, be possible to carry into effect.

§ MAJOR NOLAN
said, he would advise the hon. and gallant Member for East Aberdeenshire not to press the first part of the Amendment. The second part, which related to the recommendation to mercy, stood, however, upon a totally different footing. It was only about 18 years ago that the rule was introduced that such a recommendation should not form part of the proceedings of the court, but that it should be forwarded in a separate letter to the Secretary of State for War. The-law, therefore, was formerly that which the hon. and gallant Gentleman wished to make it now; and the effect of not making the recommendation part of the proceedings was that courts martial were unable to bring any moral pressure to bear on commanding officers. The question was whether they ought to be enabled to do so, and, in his opinion, they ought. The members of the court had the advantage of having been in contact with the prisoner; of having had the means of forming an opinion of his character; of having seen and heard the witnesses in the case, and had the opportunity of making themselves acquainted with all the circumstances bearing on the prisoner's guilt. Their recommendation, therefore, ought to have great weight; but it would not have nearly so much weight if it were not made part of the proceedings. He might also observe that he was afraid the mere trouble of writing letters often prevented the recommendation of a prisoner to mercy; and, for these reasons, he hoped the hon. and gallant Gentleman would go to a division on that part of his Amendment.

§ COLONEL COLTHURST
said, he thought it was of great importance that the recommendation to mercy should form part of the proceedings of the court, and should be glad to see that part of the Amendment carried.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
pointed out that the recommendation to mercy by a jury formed no part of the proceedings of a Criminal Court. The jury were bound to 504 return a verdict in accordance with the evidence brought before them, and there their functions ceased. It was quite true, of course, that recommendations to mercy were made by juries, but they never appeared on the record.

§ SIR JOHN HAY
said, he quite concurred in the opinion that a recommendation to mercy by a court martial should appear publicly on the record of its proceedings. Martial law was necessarily stringent and severe; but in cases in which the court thought that mercy ought to be extended to a prisoner, although the law required that sentence of death should be passed on him, the recommendation to mercy ought, he thought, to be made as public as the sentence.

MR. COLE
said, the hon. and learned Solicitor General was, no doubt, quite right in saying that the recommendations made by juries formed no part of the proceedings of our Criminal Courts; but, as the Committee were aware, the Judge who presided always took care to inform them that their recommendation would be forwarded to the proper quarter. It, accordingly, was always so forwarded, and was frequently acted upon. It constituted, therefore, in reality, a most important part of the proceedings of a court. He should most cordially support the latter portion of the Amendment.

§ COLONEL ALEXANDER
said, the hon. and gallant Gentleman the Member for Galway (Major Nolan) was quite right in stating that formerly the recommendation to mercy used always to appear as part of the proceedings of a court martial. It was only in 1868 that the alteration of which the hon. and gallant Gentleman spoke was made.

§ GENERAL SHUTE
said, that as matters at present stood, there was a great want of uniformity in the practice in respect to recommendations to mercy. In some cases they were attached to the proceedings, and in some they were not; and he thought it desirable, therefore, that the latter part of the Amendment should be adopted by the Committtee.

§ MR. HOPWOOD
said, the consensus of the military Members of the House seemed to be in favour of the change proposed in the latter part of the Amendment, and he hoped it would be agreed to by the Committee. The argument of the hon. and learned Solicitor General, 505 drawn from what occurred in the Criminal Courts, was, he thought, based on a false analogy. In the case of those courts, it would be inconvenient that the recommendations of juries should form part of the proceedings, and there was no necessity that they should, for the Judge could, in most instances, deal with the matter then and there. He would, of course, forward, in the case of a capital offence, such a recommendation to the Secretary of State; and his right hon. Friend (Mr. Assheton Cross) would, he was sure, consider it to be a dereliction of duty if he did not pay every attention to it. No Judge would for a moment, he might add, think of keeping from the knowledge of the Secretary of State the fact that a recommendation to mercy had been made by a jury. But courts martial were entirely different tribunals from the ordinary Criminal Courts; and as no inconvenience could result from the adoption of the Amendment, he thought the latter part of it, at all events, ought to be agreed to in common fairness to the soldier.

MR. ASSHETON CROSS
said, the clause had reference not only to the punishment of death, but to other punishments; and that in a number of cases the Judges reported to the Secretary of State that, in their opinion, the sentences should be dealt with leniently. Those recommendations, however, were not published; and his hon. and learned Friend was perfectly right in saying that the recommendations to mercy made by juries formed no part of the proceedings of the Criminal Courts.

MR. COLE
said, he did not dispute the correctness of that statement, but the real question was, how the practice worked?

§ SIR ALEXANDER GORDON
hoped the Secretary of State for War would agree to the first part of the Amendment, because it was word for word the existing Act. He had put it down because he had found that the right hon. and gallant Gentleman had omitted it from his Bill, and he thought it was a question which it was most important to decide there, and not leave to regulations. If they bore in mind that a private soldier had to stand eight hours over his trial, he thought they ought to make it certain by legislation that no trial by court martial should be held for more than eight hours in a day.

§ COLONEL STANLEY
thought that whether it was put into the Bill or left to the regulations was not of much importance, though there were reasons why ho should prefer not to have it in the Bill. The question, however, of recommendation to mercy was not likely to be altered by Act of Parliament. There was this to be said—that a court martial, under the present Bill, was not tied to any particular offence; and, therefore, they were not bound, as they used to be under the old Act, to give a certain punishment for a certain offence. As there appeared to be a general feeling on the part of the Committee in favour of so much of the Amendment as related to the recommendation to mercy, he should assent to it.

§ SIR GEORGE CAMPBELL
said, it was his experience that courts martial were extremely slow moving bodies.

§ SIR ALEXANDER GORDON
offering to withdraw the sub-sections referred to of the Amendment,

THE CHAIRMAN
pointed out, that the whole of the Amendment was at present before the Committee, and it would be necessary for the hon. and gallant General to move to amend it by striking out the first part.

§ SIR ALEXANDER GORDON
moved to leave out sub-sections 9 and 11 from the proposed Amendment.

§ MR. HOPWOOD
said, he only wanted to point out, before they parted with the Amendment, that it was urged by the hon. and gallant Gentleman that one reason for his Amendment was that a prisoner had to stand the whole of his trial by a court martial. Now, as a civilian, it did strike him that they might offer the man a seat. Even the greatest criminals in Civil Courts were not treated so. They were not expected to stand until human endurance could stand no longer. He wanted to suggest that, if it were necessary, there should be inserted, even in the regulations, a provision to the effect that the president of a court martial should be directed to allow a prisoner to sit down.

§ COLONEL STANLEY
was sure that no officer need be directed to do anything of the sort.

§ COLONEL STANLEY
said, it would save the time of the Committee if he stated that he proposed, in the absence of the hon. and gallant Member for Renfrewshire (Colonel Mure), to accept the latter part of his Amendment, which was as follows:— In no case shall the authority recommend the increase of a sentence, nor shall the court martial on revisal of the sentence, either in obedience to the recommendation of an authority or for any other reason, have the power to increase the sentence awarded.

§ MAJOR O'BEIRNE
wished to add the words— Nor shall it be lawful for the convening authority to order members of the same court to sit again for other trials of other prisoners, unless it shall be their turn upon the duty roster, or the exigencies of the Service shall demand it. The reason he had for proposing the Amendment was because it was quite possible for a commanding officer to order a court martial to sit for six months, on the ground that they did not know their duty properly. When he examined His Royal Highness the Commander-in-Chief before the Committee, His Royal Highness said he was not aware that there was any such practice. But he (Major O'Beirne) knew that it was so. He was on a court martial in India, when the officer commanding the regiment ordered himself, the president, and four other members of a court martial—that was five altogether—to sit for six months, and that was in the hot weather. The reason for doing so was that they had not passed sufficiently severe sentences. He considered that such a step was a very improper interference with the oath which members of a court martial took. If his Amendment were accepted, a commanding officer could not possibly order a court martial to sit for six months, unless the exigencies of the Service absolutely required it.

§ SIR ALEXANDER GORDON
thought it would be better to omit from the original Amendment the words " either in obedience to the authority or for any other reason;" because, if they stipulated that the authority should not increase the sentence, it would be rather an anomaly to put in these words.

§ COLONEL STANLEY
agreed with the hon. and gallant Baronet. He did not think it was necessary that the words should be kept in; but, at the same time, he was rather in a difficulty. His hon. and gallant Friend the Member for Renfrewshire put the words in thinking that, perhaps, there might be moral pressure exercised upon the court martial, a supposition in which he did not agree. But having accepted the words, and the hon. and gallant Member being away, he thought that, even if they were surplusage, he should be better discharging his duty by not withdrawing them.

§ MAJOR O'BEIRNE
then moved the addition of the words which he had suggested previously.

§ COLONEL STANLEY
said, he must confess that he should be rather unwilling to have it taken as a legal point what was the position of an officer on the duty roster. As a matter of fact, he always thought that court martial duties were detailed by the duty roster. He knew that it had been the case that some junior officers, who were supposed not to know their duties, had been taken out of their turn, and put on courts martial; but that was some time ago, and such officers were now attached to courts martial as supernumeraries. He did not think that such cases as that mentioned by the hon. and gallant Member for Leitrim (Major O'Beirne) existed now, or that they had been so general in the Army that it was necessary to take cognizance of them.

§ COLONEL ALEXANDER
thought that a commanding officer would commit a gross violation of the Queen's Regulations by such a course as the hon. and gallant Member for Leitrim had described. It was distinctly required by the regulations that the duty was to be detailed by the roster, from the senior officer downwards. He had never known such an instance as was mentioned; but he recollected what took place at the Committee on the Mutiny Act last year: and he was perfectly astonished when he saw the question which had been put to the Duke of Cambridge, as he had never heard of such a case occurring.

§ MAJOR O'BEIRNE
said, that it was done in India. It was constantly done, because it was very difficult to make an 509 appeal to authorities in ease of any irregularity; besides which, officers at a distant station might find it a very unpleasant thing to prefer a complaint against their commanding officer. Ho had spoken to several officers on this subject, and they had confirmed his statement.

§ GENERAL SHUTE
said, he had had six years' experience in India, and he had never come across such a case. He agreed that it would be an extreme irregularity. Where officers were found very ignorant of their duties, it was usual for a commanding officer to desire them to attend all courts martial which assembled in the regiment, or in some cases the district, till they proved, on examination, that they had become better acquainted with military law, and thus that they were entitled to be on the roster for court martial duty.

§ MR. BIGGAR
hoped the hon. and gallant Gentleman would carry his Amendment to a division, because it seemed to him that the system was so improper that it was only carried into operation in districts where there was not a good opportunity for protesting against the despotic arrangements of the officer in command, and that was the very reason why specific instructions should be laid down that each officer should only perform his fair turn of duty.

§ COLONEL KING-HARMAN
suggested that the Amendment would not meet the case, because courts martial were always convened for the trial of a soldier or a sergeant, or such other persons as might be brought before them.

§ SIR ALEXANDER GORDON
moved, in page 28, line 28, to leave out from "or," to "Presidency," in line 29, both inclusive. The object of that was that the punishment of death should be approved by the Governor General of India, and not by the Governors of the minor Presidencies. Now that communication was so rapid between the head-quarters of a regiment and the Government of India, he thought there could be no objection in submitting the sentence to the Viceroy for approval. It would be a protection to the prisoners, and, in some cases, a very valuable protection.

§ COLONEL STANLEY
hoped that the hon. and gallant Gentleman would not 510 insist upon his Amendment. He confessed that he spoke with some little doubt as to the legal effect of the objection which he would make, but he had taken the Act exactly as it stood. The case arose very seldom, and he thought it better to leave the law whore it stood.

§ SIR HENRY JAMES (for Mr. E. JENKINS)
moved an Amendment to leave out the words that provided for the confirmation of a sentence by a higher authority only in the case of an officer. The offences dealt with in the subsection were generally treated by military law, subject to reference to a higher authority. The Committee would see that in the case of an officer confirmation was required, and not in the case of a private soldier. He moved, in page 28, sub-section 9, to leave out the words "being an officer," in order that there should be no distinction between the officers and privates.

§ COLONEL STANLEY
did not think there was any objection to leave out the words.

§ MR. J. BROWN (for Mr. A. H. BROWN)
moved, in page 28, after line 41, to insert— (1.) The court shall not make any amendment under which the accused, if found guilty of the amended charge, would be subject to a higher penalty than he would he if found guilty of the original charge. The provision contained in the clause, if acted upon, would lead to much abuse. The officer convening a court had every facility for making the charge accurate and true, and the charges, to be properly framed, should be supported by evidence before they came on. If he referred to the authorities on the subject, he could not find any provision whatever for allowing an amended charge. These authorities showed that an alteration in a charge was something entirely different from the practice which had hitherto existed. He contended that the very fact that a prisoner was not found guilty of what he was charged with was a good reason for his acquittal; and he thought that no court martial should proceed to a 511 trial unless they had satisfied themselves of their competency to deal with the charge. For those reasons, he thought the Amendment of the hon. Member for Wenlock was worthy of the consideration of the Secretary of State for War. He thought that some such words as those of the Amendment were absolutely necessary; otherwise, a prisoner might be found guilty on a different charge from that with which he was originally charged. In Clause 56 they would find that a soldier charged with embezzlement might be found guilty of stealing or fraudulent misappropriation of property. Surely one of those offences must be greater than the other. It also was provided that a soldier charged with desertion might be found guilty of an attempt to desert, or of being absent without leave. In their own words, they evidently allowed a prisoner to be charged with one offence and found guilty of another; and, as one must be greater than another, he contended that, unless the Amendment was adopted, a charge might be amended and a man found guilty of a greater offence than that with which he was originally charged. His chief argument was this— that in the Criminal Code (Indictable Offences) Bill such a thing was allowed to be done. It was presided over by a learned Judge. But the Army Discipline and Regulation Bill would have to be administered by, ho would not say ignorant officers, but certainly officers ignorant of law; and to put any such power as that in the hands of the president of a court martial would be imposing upon him a duty very disagreeable to exercise, and one he should not like to have to exercise himself. He observed that it was provided in the Criminal Code (Indictable Offences) Bill—Clause 488—that an amended form of charge would be allowed; but they had also provided for an appeal against the amended charge. In the Army Discipline and Regulation Bill there was no such appeal. By the Criminal Code a prisoner would be protected in every possible way; whereas by the Army Discipline and Regulation Bill he was left in the hands of officers ignorant of law.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
hoped the hon. Member would see that it was not quite proper to put in the words of the proposed Amendment. Even if they were 512 added, he thought the prisoner might, on conviction, be liable to greater punishment. The clause was, of course, intended to give power to the tribunal to put the charge in proper form. Ho trusted the Amendment would not be pressed.

§ SIR HENRY JAMES
thought that the Secretary of State for War should further consider the great power conferred by the clause, with a view to its being restricted.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
said, the matter should receive further consideration.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
proposed to add the words " or render him liable on conviction to greater punishment."

§ SIR ALEXANDER GORDON
had an Amendment on the Paper to omit this clause altogether; and he believed ho could show that it was, as far as the prisoner was concerned, a very unjust one. The marginal note set opposite this clause would lead anyone to imagine that the clause itself was confirmed by the 14 & 15 Vict. c. 100; but if hon. Members would refer they would find that by no means to be the case. The Act of Parliament referred to allowed alterations to be made in the charges preferred in Civil Courts, when there was a slight difference between the name of any county, division, city, or borough, or in the name of any place mentioned or described in the indictment, or any alteration in the name, or error in the name or description of the person or persons, or if the Christian or surname of the person or persons was wrongly described they might be altered, or if there was an error in the name or description of any matter or thing. The Act was restricted entirely to the trivial errors mentioned, and it rested with the Judge to alter the charge; but there was no provision whatever for allowing any alteration with regard to the matter of the charge. On the contrary, it was carefully excluded from the Act cited; but the Committee were here asked to agree that the charge itself should be altered when the evidence was insufficient, and the charge was inaccurately described. Nothing could be more unjust than to put a 513 man on his trial for an offence, and when he had made all his arrangements and had got together his "witnesses to prove his innocence, turn round and change the charges brought against him. Again, when it was considered that the persons who were to make this change were not lawyers, and had no knowledge of the Law of Evidence, it would appear a still more unjust step to take with regard to the prisoner. He hoped the Committee would reject the clause altogether.

§ COLONEL ALEXANDER
supported the Amendment of the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon), on the ground that the clause was a premium on the incapacity and incompetence of the commanding officer. The clause said that— When the court martial are of opinion that there is any defect in the charge, or that there is a variance between the charge and the evidence offered in proof thereof, and that such defect or variance is not material to the merits of the case, they may amend the charge. Why should there be any variance between the evidence and the charge preferred? It was the duty of the officer to see that the charge was not at variance with the evidence. When the commanding officer had investigated all the facts of the case, he sent the result of his investigation, with the depositions of witnesses, to the general officer, by whom they were reviewed, and then sent back to the court martial. If, after all this, the charge should be altered on the ground that it was at variance with the evidence, it would be the grossest injustice to the prisoner. Further, the court martial not consisting of trained lawyers it was totally incompetent to make this change; and he, therefore, hoped the hon. and gallant Gentleman would go to a Division on the Amendment.

§ MAJOR NOLAN
said, that the alteration of charges would lead to great difficulty.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
thought that there was some misapprehension as to the intention of the clause. It would be extremely improper that there should be any alteration in the charge; and he suggested that the right hon. and gallant Gentleman the Secretary of State for War should allow the clause to be amended, if by the introduction of such Amendment its meaning could be rendered clearer.

§ SIR HENRY JAMES
said, that the clause provided that the alteration might take place at any time before the finding of the court, so that after every witness had been called, and after the accused had given his defence to a charge, of which the court might find him perfectly innocent, the court might say he was guilty of another offence; while the power of the accused was simply that he might re-call and cross-examine any witnesses, as if such witnesses were then called for the first time to give evidence on the trial, and call any other witnesses. He thought the intention of the draftsman was to give the court power to frame a different charge. The hon. and learned Solicitor General would, he thought, agree that under the clause in its present form a man accused of embezzlement might be found guilty of felony on a distinct and separate charge. It was impossible for the Committee to bear the responsibility of passing the clause in its present form, which gave a power far greater than existed in any Civil Court. A court martial was the last body to whom it was desirable to give such great power, inasmuch as it consisted of untrained Judges. He suggested that the right hon. and gallant Gentleman should allow the clause to be struck out, with a view to remedy any technical defects which it contained.

§ COLONEL STANLEY
admitted that the criticisms of the hon. and learned Member for Taunton (Sir Henry James) were of great force, and suggested that the clause should be negatived pro formâ, so that it might be altered in accordance with the views of the Committee.

§ MR. HOPWOOD
, thinking that some considerable discussion of this clause would be necessary, and in view of the lateness of the hour, begged to move that Progress be reported.

§ SIR HENRY JAMES
thought the clause might be proceeded with.

§ COLONEL STANLEY
said, the clauses relating to the execution of the sentence 515 did not involve any matter on which serious discussion could arise.

§ MR. HOPWOOD
, not wishing to go against the feeling of the Committee, asked leave to withdraw his Motion.

§ SIR ALEXANDER GORDON
moved, in page 29, line 16, to leave out the words " attempting to desert, or of." He pointed out to the Committee that the attempt to desert was made a crime only two years ago by the House of Commons, without a single word having been said on the subject. What occurred was as follows:—The Mutiny Bill was down for second reading, and the late Secretary of State for War was asked by the hon. Member for Newcastle (Mr. J. Cowen) whether the Bill was going to be read a second time? The Secretary of State for War replied in the affirmative, and the hon. Member for Newcastle objected. The Secretary of State for War said that the only changes in the Bill were those of detail, and the House accepted that statement; but it turned out afterwards that the words " attempting to desert " had been inserted. The crime was, therefore, entirely new, and one which it was most difficult to prove, inasmuch as it was impossible to tell whether a man intended to desert or not, a fact which could only be ascertained when the man had deserted. The First Lord of the Admiralty would boar him out in saying that in the Navy the crime of "attempting to desert" was unknown. The sailor must be convicted of desertion or of absence without leave, but could not be tried for attempting to desert. How was it possible to prove the intention to desert? If a man were apprehended before desertion was completed he could not be tried for desertion, but only for absenting himself without leave. Attempting to desert was not a crime for which a man ought to suffer death, to which on active service he would be liable. The House of Commons never intended this; and he, therefore, hoped the Committee would agree to the Motion which he now begged to move, that the words " attempting to desert or of" be struck out of the clause.

§ COLONEL STANLEY
thought it would be very unwise to leave out the words " attempting to desert." The hon. and gallant Member had asked whether it 516 was possible to prove that a man intended to desert before he had carried out his intention? One of many cases in point which occurred to him (Colonel Stanley) was that of a man who might go into barracks and get together all his clothes and then transfer them to a private house. The intention to desert would be clearly shown in such a case.

§ MR. HOPWOOD
was at a loss to understand the meaning of the last paragraph of the clause, which seemed to him to resolve itself under the discussion which had already taken place upon Clause 55. It ran thus— A prisoner charged before a court martial with any other offence under this Act may, on failure of proof of an offence being committed under circumstances involving a higher degree of punishment, be found guilty of the same offence as being committed under circumstances involving a less degree of punishment. He did not find any objection to that, but was quite unable to understand the meaning of what followed— And also may, on failure of proof of the full offence, be found guilty of another offence of the same class not involving a greater degree of punishment. He presumed the class of offence was to be measured by the punishment put against it in this Act; but the clause spoke of " another offence," and was altogether so vague, that he moved to leave out the words from the beginning of line 20 to the end of the clause.

§ COLONEL STANLEY
said, the intention of the section was to give the accused the benefit of any extenuating circumstances which might reduce the gravity of his offence. For instance, disobedience in the military sense of the word implied positive refusal to obey a given order; but it was quite possible that there might be extenuating circumstances tending to show that a man charged with this offence had only neglected to obey the order. In that case, he apprehended that the man would deserve punishment for an offence of the same class as that charged against him in the first instance.

§ SIR HENRY JAMES
said, that was, no doubt, the case; but, assuming that there was a failure of proof of the full offence, the accused might be found guilty by the terms of the clause of "another offence" which was exactly 517 what the Committee had just decided should not take place. He understood the general terms, but not their legal bearing, and therefore trusted that the Solicitor General would give some further explanation of the legal meaning of the words of "another offence of the same class."

§ COLONEL STANLEY
thought that, after the discussion which had taken place, it would be much safer to strike out the last three lines of the clause. He thought there might be many reasons for finding a prisoner guilty of the same offence committed under circumstances involving a less degree of punishment; but it might, perhaps, lead to a loose interpretation, and, therefore, he proposed to strike out, after "punishment," the words— And also may, on failure of proof of the full offence, be found guilty of another offence of the same class not involving a greater degree of punishment.

§ MR. HOPWOOD
moved to report Progress.

§ COLONEL STANLEY
hoped the Motion would not be pressed. Although the Committee had now been engaged upon the Bill for a considerable time, yet they were proceeding with a part of it to which there were comparatively few Amendments, and most of those were unopposed. He thought, therefore, the Committee might still make very good progress without coming to any point which would excite opposition. He turned over four or five pages of the Bill, and found literally only one small Amendment. When they came to any matter likely to lead to serious discussion, as involving a question of principle, he should not object to report Progress.

§ MR. HOPWOOD
said, his hon. and gallant Friend the Member for East Aberdeenshire (Sir Alexander Gordon) had left the House under the impression that Progress would be reported after Clause 56 had been disposed of. His hon. and gallant Friend had appealed 518 to him whether that was not so, and he had told him that he thought that was the understanding.

§ SIR HENRY JAMES
hoped the Committee might be allowed to proceed.