Rules of Procedure. (Hansard, 24 June 1879)

HC Deb 24 June 1879 vol 247 cc543-76 543

§ Clause 69 (Power of Her Majesty to make rules of procedure).

§ COLONEL STANLEY
moved that the clause be postponed. He had been informed by his advisors that it would be best to postpone the discussion of this clause in Committee till a later period.

§ MAJOR NOLAN
wished to know exactly when the clause would be taken, for it involved very important considerations. He should not like the clause to be taken without Notice, or at a late or inconvenient hour.

§ COLONEL STANLEY
said, that he proposed to postpone the discussion of the clause, because he was advised that it would be best not to take power to make rules of procedure until the various clauses of the Bill had been decided upon by the Committee. The clause, having been postponed, would come before the Committee at a later period; 544 but when he could not at that moment say.

§ MR. HOPWOOD
observed, that this clause was open to considerable objection, for it was one giving power to Her Majesty— To make rules to be signified under the hand of a Secretary of State, to repeal, alter, or add to, certain provisions of the Bill. The power given by this clause was, in effect, to leave it to the Secretary of State to vary various matters decided upon by the House. He thought this matter required considerable attention.

§ MR. O'DONNELL
thought the proposal to postpone the consideration of this very important clause was very inconvenient; if the Government were not prepared to discuss the clause, let them postpone the discussion of the Bill altogether. The Government would find itself very much more pressed for time later on in the Session, and would probably yield to the irresistible temptation of bringing on the clause, perhaps, after 12 or 1, and a discussion at that time would not be at all satisfactory. He begged to remind the Committee that on the last occasion when the Committee sat, several clauses were run over with extreme haste, which, had they been brought forward at an earlier time of the day, would have received much more consideration. By this clause— Her Majesty may, by rules signified under the hand of a Secretary of a State, from time to time make, and when made repeal, alter, or add to, provisions in respect to the following-matters. The clause gave power to the Secretary of State for the time being, no matter what might be the subsequent decisions of the Committee upon the Bill, to make and unmake, alter and add to, the provisions of the measure. The matters over which this power was given were some of the most important provisions of the measure. They included— The convening and constituting of courts martial; the adjournment, dissolution, and sittings of courts martial; the procedure to be observed in trials by courts martial; the confirmation and revision of the findings and sentences of courts martial; the carrying into effect sentences of courts martial; the forms of orders to be made under the provisions of this Act relating to courts martial, penal servitude, or imprisonment; any matter in this Act directed to be prescribed; any other matter or thing expedient or necessary for the purpose of carry- 545 ing this Act into execution so far as relates to the investigation, trial, and punishment of offences triable or punishable by military law. The Committee had discussed the position and functions of courts martial at great length; but this clause gave power to vary any decision in respect of that, or of any of the other matters mentioned; so that, no matter what decision might be come to upon these subjects, it could afterwards be set aside by the. Secretary of State. He thought that, with such a clause as this hanging over the Bill, the best thing to be done would be to put it out of the way before they went further. For, if any subsequent clause which they passed in any way related to the matters as to which this clause gave power to make rules, the decisions of the Committee would be absolutely futile. In his opinion, there should not be any such clause in the Bill as this 69th clause. The Bill was intended to be permanent; and yet Her Majesty's Government were to have power, whenever they pleased, to vary so much of it as came within this very swooping clause. He should have thought that Her Majesty's Government ought to be able to tell the Committee what were the permanent regulations which were required for Army discipline, and to ask for the sanction of Parliament to those rules. If this Army Bill, which the House was now passing, was not found satisfactory, it was open to the Government to bring in supplementary Acts for such portions of it as were found deficient. But, by this clause of the Bill, the authorities were to be allowed to tack on provisions which, it seemed to him, would entirely stultify the action of the Committee. One would have imagined that the Government desired to pass a Bill of some kind with respect to the Army; but if the Government were ashamed of their Bill, let them say so, and not occupy the time of the House further with it. He could see no reason whatever for the postponement of this clause.

MR. O'CONNOR POWER
was surprised that the right hon. and gallant Gentleman the Secretary of State for War did not think it worth his while to notice the observations of his hon. Friend the Member for Dungarvan; because it seemed to him that what he had pointed out— namely, that this clause gave power to do away with the decisions of the 546 Committee on various parts of the Bill, was of very great importance. The Government now proposed to withdraw this clause, and to run through the whole Bill, and then to embody the substance of this clause in a new one. He thought that the best time for the discussion of this very important question was as it stood in the 69th Clause.

§ Motion agreed to.

§ Clause, by leave, postponed.

§ Inquiry as to, and Confession of Desertion.

§ Clause 70 (Inquiry by court on absence of soldier).

§ SIR ALEXANDER GORDON
wished to move an Amendment—namely, in page 39, line 2, to leave out the word "may," and insert the word "shall."

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

§ MR. O'DONNELL
wished to move an Amendment on the clause, before that of the hon. and gallant Member. This clause said— That when any soldier has been illegally absent from his duty for a period of twenty-one days, a court of inquiry may, as soon as practicable, be assembled, and inquire in the prescribed manner on oath (which such court is hereby authorized to administer) respecting the fact of such absence. He wished to point out that the object of the inquiry in this clause was whether the soldier had been "illegally" absent or not. He did not think that this presumption of illegality should be retained, for what was the use of the word "illegal" in the clause? If the soldier was absent without known cause, he could understand it; but when it was said that the inquiry was to be whether he was "illegally" absent, he did not see what meaning was to be attached to the word. He should suggest that, instead of the word "illegally," there should be substituted the words " has been absent without known cause."

§ COLONEL STANLEY
said, that if the word "illegally " were left out, the absence of a soldier from his duty for 21 days would be made legal. Where a soldier had been absent without any assignable cause then the court of inquiry would have to assemble. This court was— To inquire in the prescribed manner on oath (which such court is hereby authorized to ad- 547 minister) respecting the fact of such absence, and the deficiency (if any) in the arms, ammunition, equipments, instruments, regimental necessaries, or clothing of the soldier; and if satisfied of the fact of such soldier having absented himself without leave, the court shall declare such absence and the period thereof, and the said deficiency (if any), and the commanding officer of the absent soldier shall enter in the regimental books a record of the declaration of such court. If the absent soldier does not afterwards surrender, or is apprehended, such record shall have the legal effect of a conviction by the court martial for desertion. The record had a legal effect, and the soldier's effects were sold and placed to the non-effective account. This was necessary to be done, as in some cases soldiers deserted, and were not heard of for years.

§ MR. BIGGAR
thought that the objection raised to this clause was this—that it was assumed by the clause that the soldier was "illegally" absent before investigating the case. It was proposed, then, to punish the soldier for being "illegally" absent. If he apprehended the Amendment, it was to introduce after the word " absent " the words "without leave," and to strike out the word "illegally." Under this clause, as it stood, a soldier, who had been absent without leave, might be declared a deserter in his absence. A soldier might be absent without leave from no fault of his own, but for causes which he could not help; and it was not right that it should be assumed that ho had been "illegally" absent.

§ MR. O'DONNELL
hoped that the right hon. and gallant Gentleman would consent to strike out the word '' illegally " and put in the words "without leave." His contention was that it could not be told whether the soldier was illegally absent until he had been tried; he might be absent for a very good reason—he might have got leave, and overstayed it from no fault of his own, and, at the same time, if might be necessary for inquiry to be made into the cause of his absence. It seemed to him that the wording of the clause was faulty; and he could not see why the authorities should stick to the word "illegally," which was not properly put in the clause. Although a soldier might be absent without assignable cause, it ought to be legally proved that his absence had been "illegal." He thought that the fact of the illegality of the man's absence should be proved, rather than they should go upon a sup- 548 position which might turn out to be quite unfounded.

§ MR. HOPWOOD
understood the right hon. and gallant Gentleman the Secretary of State for War to say that mere absence from duty was a sufficient definition, and that the soldier was then on the wrong side of the account. What he supposed the right hon. and gallant Gentleman meant was that absence from duty raised the presumption of an offence or omission cognizable by a Court of Inquiry. If that were so, he should be much surprised. He did not see that the word "illegally" was really wanted; all objection to the clause would be done away with by taking out the word "illegally." Then the clause would read—" When any soldier has been absent from his duty for a period of 21 days," and there was something to be inquired into. If the clause were left in that manner, they would have all they wanted; but if the word "illegally" was retained then, as the hon. Member for Dungarvan had said, it would prejudice the matter; whereas the court ought to require to be satisfied by proof that the absence of the soldier was " illegal."

§ SIR ALEXANDER GORDON
was bound to say that he thought the proposal to strike out the word " illegally " was a sensible one. He considered that it would be quite enough to provide for the trial of a soldier " who had been absent from his duty without leave," without using the word " illegally."

THE SOLICITOR GENERAL (Sir HARDINGE GIFFORD)
was inclined to agree with some of the observations of the hon. Member for Dungarvan. But this was only one of those enactments which assumed, in the first instance, the commission of an offence. It was the rule in Acts of Parliament to say that a man guilty of murder should be tried before a magistrate, and the same phrases were used with respect to other offences. It was assumed in all Statutes that a man was guilty of the offence for which he was to be brought before the magistrates. In a certain sense, no doubt, it was unjust to assume that the man was guilty of an offence before he was tried; but, on the other hand, no real injustice was done, and no practical inconvenience resulted from leaving the language as it now stood. It was the contention of his right hon. and gallant Friend 549 that the mere words " absence from duty without leave" would not cover every case that might occur. There seemed to be cases in which the words "absent without leave" would subject persons to trial who were not really liable to be tried. He thought that what had been said with respect to this clause was hypercritical; and as he had shown that it was usual, in speaking of the trial of offences, to assume that a man was guilty of what he was tried for and no practical inconvenience resulted, he did not think it was worth while to alter this clause.

§ SIR CHARLES W. DILKE
observed, that it was surely not necessary to retain these words because it had been the usual practice to assume that men were guilty before they were tried. There must be some form of words known to the Army authorities which would correctly state the circumstances which should make a soldier liable to be tried, without using words which assumed that he was guilty. Clearly, the Committee could not allow the word " illegally " to be retained in the clause when its use was prejudicial. He should suggest, that instead of " illegally," they should say—"Absent without leave," "without due cause," or " without reasonable cause."

§ MR. RYLANDS
said, that this was one of the difficulties in which the Committee was landed in consequence of Her Majesty's Government not giving proper instructions to the Select Committee. If the Government had directed the Select Committee to deal with the questions put before them in the general way, instead of saddling: them with the terms they had, he believed that the anomalous wording of the clause would not have been retained. If the Committee had been left unfettered, the Articles of War and the Mutiny Act would have been drafted into a proper shape, and the old words, which were improperly used in those documents, would not now appear. The right hon. and gallant Gentleman seemed to regard the language of the Articles of War and the Mutiny Act as almost having the authority of inspiration. He could not see any ground for the Government refusing to accept this Amendment. The hon. and learned Gentleman (the Solicitor General) did not give the slightest evidence to show that the words suggested 550 would not meet the case. He most strongly objected to the continuance of words in this clause, because they were found in the very musty and obsolete Articles of War, and had been for many years accepted by the military authorities.

§ MR. O'DONNELL
wished to point out that the phrase " without leave " occurred a little lower down in the clause, and seemed to be tantamount to '' illegal'' absence. That seemed to him to take away the ground from under the feet of Her Majesty's Government. If the Government criticized them for being hypercritical, he thought that the Government were guilty of delaying the Business of the Committee from their own hypercriticism, in refusing to accept the Amendment.

MR. O'CONNOR POWER
said, it was admitted that as the words stood in the clause they were capable of an ambiguous construction; and it had been suggested that the words should be made clear and intelligible. If the phrase "without leave" did not cover the ground sufficiently, then he thought that the expression which had also been suggested by the hon. Baronet the Member for Chelsea (Sir Charles W. Dilke) would meet the case—namely, "without leave," or "without due cause," or "without reasonable cause." These were expressions which were intelligible to everyone; but the word "illegally" was really a very doubtful word. Nothing could be worse than to leave such a matter as this in ambiguity.

§ COLONEL COLTHURST
remarked, that the words " absent from duty without leave " would, in practice, cover every possible case.

§ COLONEL ARBUTHNOT
thought that the objection might be readily met if it were said " suspected of having been illegally absent from duty."

§ COLONEL STANLEY
had no objection to the insertion of the words "absent from his duty without leave;" but what he did object to was to strike out the word "illegally." Striking out that word would make a man liable to be tried who had been absent even with leave, but had overstayed it.

§ MR. BIGGAR
said, that the original proposal was that the word " illegally" should be struck out. With respect to the contention of the hon. and learned Solicitor General, it seemed to him to be an exceedingly weak one. He argued 551 that because in some Acts of Parliament expressions were used which were contrary to general principles of jurisprudence, they should adhere to them and fall into the same error.

MR. O'CONNOR POWER
said, that the Government was asked to give way upon this point as to the word "illegally," and to that the right hon. and gallant Gentleman the Secretary of State for "War had replied that he accepted the suggestion of the hon. and gallant Member for Cork (Colonel Colthurst). This was absolutely no concession on the part of the right hon. and gallant Gentleman; and he did not think that they ought to pass this clause under the idea that a concession had been made. The addition of the words " without leave " would not meet the objection which had been made. It was against the common sense of the Committee to suppose that they would consent to a proposal of that kind.

§ MAJOR O'BEIRNE
remarked, that if a soldier surrendered, or was afterwards apprehended when he was absent from no fault of his own, he would, nevertheless, have been declared " illegally" absent, and convicted of desertion. If a soldier surrendered voluntarily, there was no occasion for a conviction.

§ MR. O'DONNELL
remarked, that in the case stated where a man had been tried as illegally absent, there was good reason why he should not have been convicted, and the Government, in retaining this word, was doubly stultifying itself. If the hon. and learned Gentleman (the Solicitor General), who had delivered a lecture on hypercriticism, would give a little legal advice to his military Colleagues on this subject, he thought some good would result. However great the right hon. and gallant Gentleman's knowledge of military matters might be, he did not seem to apprehend that there was grave objection to saying that a man should not be tried unless he had been illegally absent.

§ COLONEL STANLEY
said, that he was willing to accept the words, which, it seemed to him, perfectly met the objection. If they said a man was absent illegally, they said, in fact, that he was absent without leave. But he was willing to insert the words "without leave," as he understood that to be the wish of the Committee. Although he did not think that much would be gained, he 552 would not raise any further objection to the word "illegally" being struck out from the clause.

§ Amendment made,

§ In page 39, line 1, by striking out the word " illegally," and inserting in the same line, after the word " absent," the words "without leave."

§ SIR ALEXANDER GORDON
moved, in page 39, line 2, to leave out the word " may," and insert the word " shall."

§ MR. MUNTZ
thought the clause would be better as it stood; for supposing that a man was taken ill when on leave, his absence from duty for that cause ought to be passed over. But if the word " shall" was substituted for " may," on his return his commanding officer would have no alternative but to assemble a Court of Inquiry to inquire as to his absence.

§ SIR ALEXANDER GORDON
explained, that the reason why he wished this Amendment to be made was that it would compel the commanding officer to report all deserters to head-quarters. This was a very important matter; for at present it was compulsory on a commanding officer to return a man to headquarters as a deserter if he were absent for more than 21 days. The reason for compelling the commanding officer to make these reports was that the Secretary of State for War might know how many deserters there were in the Army. If this matter were made optional, the commanding officer might allow men to be absent for several months without ordering any inquiry. At present, a General could direct a man to be reported as a deserter; but if this Act made the assembling of a court permissive, a commanding officer could refuse to have an inquiry held. Therefore, he thought that it was of the highest importance that the assembling of these courts should be made compulsory where a man had been absent for 21 days.

§ MAJOR NOLAN
did not think that the Amendment was required. At present, the commanding officer had to report a man who had been illegally absent for five days, and the War Office thus became cognizant of the fact. He knew of cases where hardship would be worked by this alteration. A man might overstay his leave without any intention of deserting; and it should be in the discretion of the commanding officer as to inquiring into the case. Moreover, there 553 might be great practical difficulties if this were made compulsory, for unnecessary trouble would be occasioned in the case, say, of a small battery of Artillery at an outlying port. It would be very troublesome for an officer in command of that battery to obtain the attendance of officers for the purpose of holding a Court of Inquiry; whereas, under the clause as it stood at present, the matter might be postponed till a convenient time.

§ Amendment negatived.

§ SIR GEORGE CAMPBELL
moved to insert, after the words " without leave," " or without other sufficient cause."

§ Amendment agreed to.

§ MR. O'DONNELL
said, that the closing paragraph of this clause was rather severe, and he thought was calculated to work undeserved injury upon the character of a man. It stated that— If the absent soldier does not afterwards surrender and is not apprehended, such record shall have the legal effect of a conviction by court martial for desertion. Desertion was a most disgraceful offence, and if it took place in the face of the enemy was peculiarly disgraceful. A soldier might be absent without leave for one or two days. He might have fallen sick, or he might be dead; but this clause would give the opportunity, from the mere fact of his having been absent without leave, to brand him as a deserter. This effect of the clause would be to enable a man who was absent from no fault of his own to be branded as a deserter. That might be very painful to his family and relations, when it was afterwards found that he had been killed, or had been taken a prisoner, or had fallen ill. He thought that the same legal effect might have been produced in some other way, without the necessity of branding a man as a deserter under these circumstances. He did not think it right to brand a man as a deserter while there was any reasonable chance or hope that he had not really deserted. He did not propose to move any Amendment on the clause; but he thought that something should be done to prevent the effect which he had pointed out.

§ COLONEL ALEXANDER
said, that it occasionally happened that a soldier returned after having been illegally absent 554 for three, four, or five years. The witnesses who might be necessary to prove the case against him might then be dead, or might have moved, and there would be no evidence producible to prove his desertion, except this record of a court martial. At present, the book of this court was produced, and was evidence of the soldier's desertion. That was the reason for the provision.

§ MR. O'DONNELL,
in replying to the hon. and gallant Gentleman opposite (Colonel Alexander), wished to put the case of a man either killed or cut off by the enemy. He thought that so much weight ought not to be given to the presumption of desertion as was given in this clause.

§ MR. HOPWOOD
read the section— If the absent soldier does not afterwards surrender or is not apprehended, such record shall have the legal effect of a conviction by court martial for desertion, —differently to the hon. and gallant Member opposite (Colonel Alexander). It appeared that the only object of the section was that the legal effect of conviction should operate by way of forfeiture upon any portion of the pay or allowances to which the soldier was entitled, so that all claims which might be made, say, by his relatives in case of his supposed death, might be quieted by the fact of his being away in a manner not explained. The words, which were simply, "if he does not afterwards surrender or is not apprehended," meant that if he never came back, either compulsorily or voluntarily, the legal effect was to be the same as if he had been condemned by court martial for desertion. That, he presumed, carried with it forfeiture of pay, and all matters of that kind.

§ COLONEL ALEXANDER
said, the regimental book was produced as evidence against a prisoner of desertion, when witnesses were not forthcoming.

§ SIR ALEXANDER GORDON
thought the Secretary of State for War ought to have explained to the Committee that this was a very important departure from the existing system. He also wished the right hon. and gallant Gentleman would explain why he had omitted from the Bill the remainder of the clause in the existing Act, of which he had taken the first part only, thereby making a court of inquiry take the place of a court martial?

555

§ COLONEL STANLEY
agreed that the | section was open to the construction placed upon it by the hon. and learned Member for Stockport (Mr. Hopwood). The words, perhaps, covered more than they were intended to do; and he would introduce words on Report to make this clause agree with the existing Act.

§ MR. RYLANDS
said, the Select Committee were presented with a draft Bill, which was intended to embrace the Mutiny Act and the Articles of War, prepared by a very distinguished draftsman, Sir Henry Thring. But, so far as he had found, the Report contained no recommendation, on the part of the Select Committee, to make the very material change in the terms of previous regulations alluded to by his hon. and gallant Friend (Sir Alexander Gordon). Again, the draft Bill presented by Sir Henry Thring contained the very terms of the existing Act, which the hon. and gallant Member had referred to. How, then, did it happen that this very important change had been made in the Bill presented for the consideration of the Committee? This was not a single instance of the way this Bill had been prepared. There were many instances in which the Bill under consideration departed, very materially, from the Bill deliberated upon by the Committee; and as those alterations could not have been made in accordance with the views of the Select Committee, they must have been made in some other way since the Committee sat.

§ COLONEL STANLEY
said, the Select Committee did not go through the Bill in the same way as the Committee of the House would go through it. They simply knew that the Bill was introduced on the authority of the Government, and that it was hurriedly placed before them. He (Colonel Stanley), as was his duty, had introduced improvements in the language, when necessary.

§ MR. O'DONNELL
asked the attention of the right hon. and gallant Gentleman to this point. A soldier might have been absent without leave for more than 21 days; a Court of Inquiry had been held and, according to the judgment of the court, it had been decided that he was a deserter, when, really, the man had fallen into the hands of the enemy. If, after his death, and the finding of the court which pro- 556 claimed him a deserter, evidence should be forthcoming, was there any means by which his memory could be cleared, and the claim of his relatives to his effects established? If not, would the right hon. and gallant Gentleman have any objection to the insertion of words in the Bill to meet this case? The effects of a soldier were, occasionally, very considerable, and unpaid balances, amounting to as much as £150 to £200, were, from time to time, advertised; and such amounts as these, unjustly forfeited in the case of men who were afterwards proved not to have deserted, would be matter of very considerable importance to their relatives. Some words ought, therefore, to be introduced to meet this case.

§ COLONEL STANLEY
said, this was unnecessary, as provision already existed for dealing with cases of the kind referred to by the hon. Member for Dungarvan.

§ Clause, as amended, agreed to.

§ Clause 71 (Confession by soldier of desertion or fraudulent enlistment).

§ SIR ALEXANDER GORDON
said, the words "or Adjutant General" had been inserted in this clause under an entire misapprehension of the duties of this officer. The Adjutant General had no power of himself, being simply a Staff officer of the Commander-in-Chief, and in precisely the same position as Staff officer, General Officer, or adjutant of a regiment. If the Committee allowed it to remain in this clause, and all through the Bill, that the " Commander-in-Chief or Adjutant General" had power to do certain things, the word " or adjutant" would also have to be used in the same way when a commanding officer was spoken of; because commanding officers gave their orders through their adjutants. He thought it better that these words " or Adjutant General" should be omitted, and therefore moved that they be left out of the clause.

§ COLONEL STANLEY
said, the Adjutant General had distinct power, in the absence of the Commander-in-Chief, to act as his deputy; and, as a case in point, the Commander-in-Chief last year went to one of the foreign garrisons for a short time, during which the Adjutant General acted in that capacity. It had been thought safer, so far as concerned 557 cases where the release of a prisoner or other matters which might have to come before a Civil Court were in question, to insert the words " or Adjutant General," which applied only to the Adjutant General in this country, and when the Commander-in-Chief was absent, or incapacitated from acting by illness; but not to any of his deputies.

§ MR. MUNTZ
suggested that the words "or in his absence" should be inserted.

§ MR. CAMPBELL - BANNERMAN
thought the word "absence" could not be applied with correctness to the General Officer Commanding-in-Chief.

§ COLONEL STANLEY
said, there was clearly some difficulty on this point, and he, therefore, preferred to retain the wording of the clause.

§ MR. O'DONNELL
did not understand the reason for the words— Where a soldier signs a confession that he has been guilty of desertion or of fraudulent enlistment, a competent military authority may dispense with his trial and order that, instead of being tried by a court martial, he shall suffer the same forfeitures and the same deductions from pay (if any) as if he had been convicted by court martial of the said offence, or such of them as may be mentioned in the order. Why should the soldier not be brought up before a court martial? Of course, when it was said that a competent military authority might dispense "with the trial by court martial, the phrase did not mean much; but the appointment of these somewhat new authorities between the Commander-in-Chief and the soldier, who were responsible for representing a case in this or that light, was no good reason for not bringing the man before a court martial. The offence in question was a very serious one; and if the soldier signed a confession of guilt, why should not the record be taken by court martial?

§ COLONEL STANLEY
replied, that this portion of the clause was inserted entirely in favour of the soldier, and its meaning, in his opinion, was perfectly clear. It enabled a man who had deserted to make a confession; and, at the same time, it allowed the competent military authority to dispense with trial and with the punishment which, on conviction, might be otherwise awarded to good men about to go abroad. But, although the trial was dispensed with, their effects were forfeited.

558

§ SIR ALEXANDER GORDON
thought the Secretary of State for "War had, by his explanation, rendered the question relating to the Adjutant General more complicated than ever. The Adjutant General of the Army in India, and of any Presidency in India, would have the some authority as the Commander-in-Chief. He wished to point out that the explanation given by the right hon. and gallant Gentleman, with reference to the power to the Adjutant General to act in the absence of the Commander-in-Chief, was quite inapplicable.

§ COLONEL STANLEY
said, the words applied only to the Adjutant General in England.

§ SIR AEXANDER GORDON
pointed out that the Adjutants General in India were specified in Clause 67.

§ MR. BIGGAR
thought the best way of dealing with those men who confessed themselves guilty of desertion would be to institute a formal inquiry into the truth of their confession. It was well-known that many persons went to the police and said they were guilty of crimes of the gravest character; and the custom was to make inquiry, and formally bring the accused persons before the Court, when, if no corroboration of the charges were forthcoming, they fell to the ground, as a matter of course.

§ Amendment negatived.

§ Clause agreed to.

§ Provost Marshal.

§ Clause 72 (Appointment and powers of provost marshal).

§ COLONEL STANLEY
desired to bring up a new clause dealing with the duties of the provost marshal, and which he trusted would meet with the approval of the Committee. Owing to the pressure of time this was not yet completed; and he, therefore, begged to move the postponement of the present clause.

§ SIR CHARLES W. DILKE
could not help expressing the opinion that it would have been more convenient had the right hon. and gallant Gentleman informed hon. Members who had taken part in the discussion upon the Bill, and especially those who had Amendments on the Paper, of his intention to postpone this clause. But, at the same time, by postponing the clause and making it more distinct, he would, 559 doubtless, be doing that which most of the opponents of the Bill wished. The great objection to the clause was its vagueness. The Committee need not go beyond the first few lines to see how extremely vague and imperfect was the wording employed. And, moreover, the language in which the clause was now expressed differed a good deal from that made use of in the Articles of War. The object of the Amendment which he had intended to move was to restore the wording of the Articles of War, which was much less vague than that of the clause as it stood in the Bill. There had been a Question put to the Government the other day with reference to the flogging of some camp-followers at the time of the occupation of Cyprus; and that Question he would like again to put to the Government at a future date. Some camp-followers had been flogged in Cyprus at the occupation. Now, that, he believed, was not on active service, according to the definition recently given in the Committee. The words '' military occupation of a foreign country " occurred in the Bill, and Cyprus was a foreign country; but the Government denied its military occupation. In the clause under discussion there were also the words " active service;" and his impression was, after having examined the subject as well as he could, that those words did not include the operations which had been carried on in Cyprus by our troops. If his view was right, he could not understand on what grounds camp-followers were flogged; and it was very important, he thought, that the Government should give the Committee some explanation on that point, for although some of the stories of flogging might not be true, there was no doubt that in many cases the power of inflicting that punishment had been abused. It was, in his opinion, necessary, therefore, that the clause should be watched by the Committee with the most jealous care. It was a clause which, for its vagueness, was more open to objection than almost any other clause in the Bill; and the Committee had a right, he thought, to complain of the suddenness with which it was proposed to postpone it.

§ COLONEL STANLEY
said, he regretted as much as the hon. Baronet who had just sat down the shortness of the notice which he had given the Committee as to 560 his intention to ask its assent to the postponement of the clause. The fact was, however, that the pressure of Business had made it physically impossible for him to lay the Amendments which he proposed to introduce into the clause on the Table that day.

§ SIR GEORGE CAMPBELL
said, he had come down to the House for the purpose of suggesting the postponement of the clause, which was one to which he had the strongest objection. Such a clause, or anything resembling it, in its present shape could not, in his opinion, possibly receive the assent of the House of Commons. He spoke not without experience on the subject, because he had seen something of the action of provosts marshal in India. Some of the stories which he had heard connected with them might not, perhaps, bear examination; but he had always been disposed to look upon a provost marshal as a most mysterious person, whose powers and actions nobody knew anything about. He was generally, he believed, a non-commissioned officer of strong character and nerve, whose temper, naturally despotic, was controlled only by the rank of the person who happened to fall into his hands. Rank made a great difference in the way in which the duties of a provost marshal were carried out. If some poor and friendless man fell into his hands, he was apt to be very roughly and very severely treated. There was nothing, so far as he could see, to prevent the provost marshal from hanging him or flogging him —in short, from doing with him what he liked. On the other hand, if he had to deal with anyone of position in the Army, he would probably be more careful how he acted in his case. The truth was, that up to the present time—and it would be still more so under the operation of the clause now under discussion—the powers of a. provost marshal amounted to nothing more or less than a despotism, tempered by the rank of the offender. He wished to take a practical view of the question, and he was perfectly prepared to say that it was necessary there should be some mode of dealing summarily and severely with offences committed when the Army was in the field. As matters stood, however, there was no alternative in such cases between the provost marshal and the very cumbrous machinery prescribed by 561 military law of a court martial, to which it was impossible to have recourse always when the troops were on active service. It appeared to him that it would be far better to confer the power of summary punishment, now possessed by the provost marshal, on some tribunal in the nature of a drum-head court martial. He at first thought that a tribunal of that kind would be established under the operation of Clause 49; but he afterwards found that that clause had reference only to general field courts martial, which would only deal with the more serious class of offences, and the sentences of which must be referred, for confirmation, to the Commander-in-Chief of the Army, who might be at a distance from the spot, and who might, therefore, find it impossible to deal with petty cases. But, be that as it might, there was no tribunal for the purpose of punishing summarily petty offences, committed against the peaceable inhabitants of a country in which troops happened to be marching, except the provost marshal; and it was out of all question, he thought, to suppose that the Committee would consent to give him the enormous powers which the clause would confer upon him. Knowing well that the clause had been considered by very competent persons, he was unwilling to repeat what he heard said by several hon. Members, that it was very badly drawn. In that respect, he entirely concurred in the remarks which had been made by the hon. Baronet the Member for Chelsea (Sir Charles Dilke). There were one or two points in the clause to which he wished especially to call the attention of the Committee; and it was all the more desirable that they should be mentioned, as the clause was about to be postponed, with the view to its re-introduction in an amended form. As it now stood, the powers given to the provost marshal could be put in force only in those cases? in which he happened to detect a person, and himself to see him, "in the actual commission of any offence." That was the theory; but how did that theory operate in practice? It was impossible that the provost marshal, who was only one man, could see with his own eyes everything that was going on in the Army. There were, however, other words in the clause by which the provision to which he was re- 562 ferring was very materially varied. If hon. Members would look at the last part of the clause, they would see the words— The provost marshal or his assistant has seen the offender committing the act for which summary punishment is inflicted. But, although he had looked very carefully over the Bill, he could not find a single syllable to explain who the "assistant" was to be. There was no such person mentioned in the Definition Clause; and he should feel it to be his duty to ask the right hon. and gallant Gentleman the Secretary of State for War, when the clause again came before the Committee in its amended shape, who were to be the assistants of the provosts marshal, and whether it would be in the power of a provost marshal to appoint anyone whom he might choose as his assistant, and accept his statement as to an offence having been committed? As regarded the character of the jurisdiction which a provost marshal was to have, and the rules under which he was to act, he could find nothing more definite in the clause than the words, "usages of war, and rules of the Service." Now, it was very difficult to find out what "the usages of war" were; indeed, no one could exactly tell. But there was a more important point still, to which he wished to direct the attention of the Committee. No mention was made in the clause of the character of the punishment which might be inflicted by a provost marshal. For anything he could see to the contrary, he would have power to hang a man by the neck, or torture him, or flog him, for any offence which he might see him commit. He should be glad to know, therefore, whether there was to be any definition of the punishment which might be inflicted by a provost marshal contained in the Bill, or whether there was to be any regulation made on the subject? He would not detain the Committee further, although there were several other points to which he should like to have referred. The right hon. and gallant Gentleman the Secretary of State for War would, he thought, find it impossible to induce the Committee to pass the clause in anything near its present shape; and he would again suggest the necessity which existed for supplementing the action of the provost marshal by some power enabling a tri- 563 bunal, in the nature of a drum-head court martial, consisting of two or three officers, to deal summarily with offences committed in the field.

§ MAJOR NOLAN
thought that some of the objections which had been raised by the hon. Gentleman who had just sat down against the clause might be met by introducing into the Bill a provision that corporal punishment should be inflicted only by order of a general court martial. He had been ruled out of Order when, on Clause 44, relating to corporal punishment, he had endeavoured to deal with the point. Discussion on the subject had, he might add, been eluded by the Government time after time, and the Committee ought, he maintained, to insist on their placing their new clause on the Table without further delay; because, if the Secretary of State for War were allowed to go through the Bill, reserving clauses which raised difficult questions as it proceeded, the result would be that the flogging question would be postponed until the House was fagged and weary of the Bill, and that no adequate opportunity of discussing the proposals of the Government would be afforded. Hon. Members, who were opposed to giving the provost marshal the power of flogging, were placed at a very great disadvantage by the course which the Government intended to pursue. They would not know when the question was to come on for discussion, and would be unable to take council together, as they ought to have the opportunity of doing. He was rather in favour of the proposal of the Government, in the earlier part of the day, to postpone another important clause—Clause 69—which conferred the power on Her Majesty to make fresh Articles of War. That clause dealt with the whole question of the powers of procedure of courts martial, and was intimately connected with the question of drum-head courts martial, to which the attention of the Committee had just been directed by the hon. Member for Kirckaldy (Sir George Campbell). But his principal object in rising was to point out to the Committee that it appeared to be the intention of the Government to pass a number of clauses of minor importance now, and to postpone the more important clauses to a later period, when they would, perhaps, try to push them through the House in one night. The 564 Committee was not, in his opinion, being properly treated by the Government, who might, he thought, on the previous evening, have made up their minds to lay on the Table the new clause which they meant to propose. They might have announced what it was they in tended to do; and he would now put a simple question to the Secretary of State for War. It was whether he did or did not intend that flogging might be inflicted under the operation of the amended clause, without the intervention of a court martial? That was the practical situation in which the Committee was placed, so far as the question of flogging was concerned. With one important exception, such a case as that of a provost marshal inflicting capital punishment, had never come under his notice. No such punishment had, he believed, been inflicted within the last 50 or 60 years, at any rate, on a European soldier; although cases of the kind might have come under the notice of the hon. Member for Kirckaldy (Sir George Campbell) during the Indian Mutiny, when, no doubt, a very large number of persons were executed; but whether by order of the provost marshal, or simply by the order of the commanding officer, he could not say Putting aside the exceptional case of the Indian Mutiny, the real question before the Committee was, whether a provost marshal was to be entitled to inflict the punishment of flogging or not without the interference of a court martial? If that power was to be given to the provost marshal, the concession which had been made by the Government on the subject of flogging was of very little use. Indeed, for his own part, he did not attach much importance to that concession, and the reduction of the number of lashes to 25, except in so far as it served to show that the opinion of the House of Commons was against flogging our soldiers, and that it was determined to give effect to that opinion as far as possible. If the provost marshal could be prevented from inflicting corporal punishment without the sanction of some sort of court martial, then a great step would be gained. The matter was of vital importance to the future of the Army; and he hoped the right hon. and gallant Gentleman the Secretary of State for War would be able to give a satisfactory answer with respect to it.

565

§ COLONEL STANLEY
said, that what he had already stated was the simple fact—namely, that the pressure of Business had prevented him from placing the amended clause on the Table. There had, in the previous week, been a long discussion, in which he was obliged to take part, on the Army Estimates, and on the succeeding days he had spent the greater portion of his time—except on Wednesday—in the House, trying to pass the present Bill through Committee. There were, besides, some three points on which he wished to take the opinion of persons whose advice would, he thought, be valuable, and he was anxious to have an opportunity of revising the clause. That was how the matter stood, and he hoped to be able to lay the amended clause on the Table of the House on Thursday. Under those circumstances, he should be glad if the Committee would assent to the postponement of the present clause; and he would leave them to judge of the merits of the new one when it was brought before them.

§ SIR ROBERT PEEL
said, he did not think there was anything like an intention to obstruct the passing of the Bill on the part of several hon. Members who objected to the course which the Government proposed to take. There appeared to him to be great force in what had been said by the hon. and gallant Member for Galway (Major Nolan). Hon. Members had been brought down to the House that afternoon to discuss, among other clauses of the Bill, especially the very important one which it was now sought to postpone, and that without Notice. Now, as the hon. and gallant Gentleman had pointed out, the result of such a mode of proceeding would be that some of the most important questions involved in the Bill would be put off to a period of the Session when the attendance of Members was usually thin, and when they would not be likely to receive that consideration which their importance demanded. For his own part, he would venture to suggest, if he might do so without offending the hon. and learned Member for Oxford (Sir William Harcourt), the desirability of postponing the further consideration of the Bill itself. ["No, no! "] That might not be the view of those hon. Members who interrupted him; but it was quite clear 566 that the Bill was very unpopular. Nothing, he might add, could well be more painful than to see hon. and gallant Gentlemen squabbling, as they did the other day, over questions which had been raised in the course of the discussion of the measure by other hon. and gallant Gentlemen on some of its provisions. What must civilians think when they witnessed such a state of things? They could hardly avoid coming to the conclusion that the military Members of the House had themselves never read the Bill. He wished also to point out that a new Schedule of offences for which flogging might be inflicted, which the Government had promised should be laid on the Table, had never been produced. He could not help saying, in conclusion, that to discuss, in the month of June, matters which were of comparatively small importance, while questions of considerable importance were postponed, was a mode of proceeding which was hardly fair or just to those hon. Members who took an interest in the subject, and who had come down to the House that afternoon with the view of discussing a most important provision of the Bill, or hardly creditable to the Government.

§ SIR WILLIAM HARCOURT
could assure the right hon. Baronet that nothing that he had said had offended him in the slightest degree. He, however, altogether objected to the jaunty way in which the right hon. Baronet, who had just come down to the House, proposed to postpone the consideration of the Bill.

§ SIR ROBERT PEEL
said, that when he came down to the House the hon. and learned Gentleman himself was not in his place; for, although he had taken particular pains to ascertain whether the hon. and learned Gentleman was in the House, he could see him nowhere.

§ SIR WILLIAM HARCOURT
said, he had gone into the Lobby, but only for a few minutes, on business; but he could assure the right hon. Baronet that, notwithstanding the great disadvantage of his absence, the Committee had passed 21 clauses on the previous evening. If, unfortunately, he were to absent himself again, they might pass 21 clauses more. But if the right hon. Baronet really desired to postpone the consideration of the Bill 567 altogether, he could not understand why ho should be so indignant at the proposal to postpone a single clause. That was a proposal which, at all events, went, to some extent, in the direction which the right hon. Baronet seemed to desire. It was surely, therefore, entitled to some sympathy from him, although it did not go the whole length which he wished. But he would ask the right hon. Baronet, or any other Member of the Committee, whether he seriously meant to persist in going on with a clause which the Government proposed to postpone? It was obviously impossible to go on with it under those circumstances. A horse might be brought to the water, but it could not be made to drink; and it would not, ho thought, be possible to compel the Government to proceed with the clause, if they wanted to postpone it. On the whole, the best thing, in his opinion, which the Committee could do, was to go on with the discussion of the next clause.

§ SIR ROBERT PEEL
said, ho wished to point out to the hon. and gallant Member for Oxford—[Cries of "learned"] —well, the hon. and learned Member for Oxford, who must have an element of gallantry about him, from the position he had taken up in connection with the Bill—that the clause under discussion was not the only clause which had been postponed that afternoon. Clause 69 had also been postponed, a fact of which he was aware, although the hon. and learned Gentleman did not seem to be cognizant of it, owing to his being absent from the House.

§ MR. HOPWOOD,
while admitting that the time of the Secretary of State for War was very much occupied in the House, said, he must enter his protest against that circumstance being taken as a sufficient excuse for the right hon. and gallant Gentleman not having fulfilled the pledges which had been given to the Committee. The fact was that the Government had put the Bill down on the Paper for discussion on every conceivable opportunity which offered itself, and hon. Members were kept in the House, early and late, for the purpose of making progress with it. If, however, a day were now and then allowed to intervene between the discussions in Committee, the Government would have time to consider the very important points which were raised, and 568 they would be better able to keep their promises. That was a course which, in his opinion, ought to be more agreeable to the right hon. and gallant Gentleman himself than to have to postpone clauses in the face of such remarks as the mode of proceeding adopted had called forth that afternoon. He, for one, had come down to the House prepared to discuss the clause. [" Oh, oh ! "] Those voices, so far as he was aware, were very seldom raised in the discussions on the Bill with a view to its improvement. Indeed, scarcely any of those hon. Gentlemen who interrupted him had, he believed, been heard to speak in any articulate fashion throughout those discussions. He was not disposed, in any way, to offer a factious opposition to the proposals made by the Secretary of State for War; but he would urge upon him the propriety of not putting the Bill down day after day on the Notice Paper, unless he was prepared to give the Committee the information for which they asked, and with which he himself had admitted it was but reasonable they should be supplied. He would remind the right hon. and gallant Gentleman that he had not yet laid upon the Table the Schedule which he had promised to produce; but. he could assure him, on the part of those who sat around him (Mr. Hopwood), that the spectre of flogging would haunt him to the last, unless he was prepared to lay it by proper and judicious concessions.

§ MR. MITCHELL HENRY
said, the Committee were placed in this difficulty —that although the right hon. and gallant Gentleman the Secretary of State for War might lay his amended clause on the Table of the House on Thursday, it could not be discussed, except as a postponed clause, after the other clauses and the Schedules had been disposed of. The Committee was likely, he thought, to be somewhat deluded by the proposal of the right hon. and gallant Gentleman; for, in his opinion, the clause might as well have been postponed till next month, for there was not the least probability that the Bill would pass through during what remained of the month of June. There ought, he contended, to be no difficulty, on the part of the right hon. and gallant Gentleman, in stating whether it was his intention that the provost marshal should still retain the power of flogging?
569 He could only say, for himself, that when he supported the Government in their desire to retain the power of flogging in the Army in time of war, he believed the punishment to be one which could only be inflicted by order of a court martial, and was quite ignorant that it might be in the power of a non-commissioned officer, or a person in the position of a provost marshal, to flog anyone. It would appear, from what had been said by the hon. Member for Kirkcaldy (Sir George Campbell), who spoke with a long experience of India, that men were sometimes hanged by order of the provost marshal. [Sir GEORGE CAMPBELL: I said a provost marshal had the power to hang.] Surely, then, the Committee ought not to assent to the postponement of the clause until they were informed that the principle was accepted by the Government, that the provost marshal should be obliged to refer for consideration to a court martial before corporal punishment could be inflicted on an offender. If some such explanation wore not given on the part of the Government, some hon. Member would, ho hoped, move to report Progress. Indeed, if no other hon. Member did, he himself would be prepared to make that Motion.

MR. O'CONNOR POWER
said, the hon. and learned Member for Oxford (Sir William Harcourt) had expressed the opinion that the Committee could not proceed with the discussion of the clause if the Government wished to postpone it. He would, however, respectfully point out that the clause was in the hands of the Committee; and it was monstrous, he maintained, to suppose that the Committee could not proceed with the Business before it, except by the favour, or with the consent, of the Government. That, however, was the proposition which the hon. and learned Gentleman appeared to have laid down, and it was one against which he (Mr. O'Connor Power) most strongly protested.

§ MR. O'DONNELL
said, it was quite clear the Government had no justification for the course which they asked the Committee to adopt. They must have made up their minds as to whether they intended to give the provost marshal the power of inflicting corporal punishment or not. If they had made up their minds, they ought not to keep their 570 intentions with regard to the matter from the knowledge of the Committee. The Government knew very well that so long as a large portion of the Bill remained to be passed a certain amount of hindrance as to its progress remained in the hands of the Committee; and they wished, therefore, to dispose of all those clauses which were not of the very first importance, in order that they might be able, on some future occasion, by the fidelity of their supporters, to rush the important clauses through Committee, repeating, perhaps, that feat of strength and endurance which was displayed, a year or two ago, in the case of the South African Bill—a measure, he might observe, which had since produced such very uncomfortable consequences, even for the Members of the Government themselves. All those hon. Members who were opposed to the punishment of flogging had made up their minds that there was not the smallest reason why they should yield to the Government on that particular point. Public opinion was on their side; the Army was on their side; a majority of the Members of that House were, he believed, against flogging. Theirs, in short, was the popular view on the question, although there might be in the Army a few wretched flunkies in a regiment who, from a desire to curry favour with their officers, declared themselves as supporters of the present system. Every soldier, however, who was ready honestly to do his duty to his Queen and to his country, objected, in the strongest manner, to the degrading punishment of flogging. It was a question, too, in which the civil population of this country were greatly interested. The treatment of every camp-follower was a matter which was in the hands of the Committee at that very moment; and the Government must have received abundant information from their Friends who sat behind them that there was no question on which a verdict unfavourable to them was more likely to be pronounced by the country than the question of flogging. The country did not like flogging, even by court martial; and was thoroughly opposed to the infliction of corporal punishment by a provost marshal. The Government might say that they had not got official information on many points; indeed, he had never heard, nor had ho supposed had 571 the oldest Member of that House ever heard, of a Government who appeared to be so constantly devoid of official information. But, although they might have no official information on the subject, they must be aware that flogging was going on right and left in South Africa; and although Lord Chelmsford might have informed them that he could not expect to conquer the enemy except by means of a well-flogged Army, those Members of the House who were opposed to flogging were determined that, so far as lay in their power, he should be compelled to resort to some other means. He had come down to the House that afternoon to oppose this flogging clause, and to hear what was the policy of the Government with regard to the matter; if, indeed, they had a policy. The clause was one of the most important in the Bill; and if it was postponed it was, in his opinion, absolutely necessary that the rest of the clauses should be postponed also. He had no hesitation in saying, no shame in telling the Government, that he should do everything in his power to oppose the passing of the remaining clauses if that under discussion was postponed, without some satisfactory explanation from the Government as to what their intentions were with regard to flogging. He perfectly well knew that the opportunity was a golden one for gaining favour with the public out-of-doors. He had had no such opportunity for a long time, and he was not, therefore, disposed to miss it. He should like to hear from his hon. Friend the Member for Galway (Mr. Mitchell Henry) whether he meant to persevere in his threatened opposition to the proposal for postponing the clause? If not, ho himself should move that the Chairman be ordered to report Progress. But he felt satisfied his hon. Friend would carry out what he had declared to be his intention. The Irish Members were determined to prove the sympathy which they had with the soldier on so important a question as that of flogging; nor would they, out of any feeling of consideration for Her Majesty's Government, retreat for a single instant from the position on the question which they had taken up.

MR. ASSHETON CROSS
did not think the hon. Gentleman who had just sat down really meant all that he had said in the course of the remarks which 572 he had just addressed to the Committee. He did not suppose that the hon. Gentleman wished the impression to be conveyed out-of-doors that he intended to stop the progress of the Bill by every means in his power. As the clause under discussion now stood, considerable objection was raised to the power which it would confer on the provost marshal; and all that his right hon. and gallant Friend the Secretary of State for War proposed to do was to take back the clause to see whether it could not be amended, and presented again to the Committee in a form which would be more convenient and more acceptable to them. He could conceive no more proper course to adopt; and he would remind the Committee that, as the hon. and learned Member for Oxford (Sir William Harcourt) had very justly pointed out, it would be impossible for the Committee to discuss the clause satisfactorily if the Government were of opinion that it ought to be postponed. The hon. and learned Member did not mean to argue, as the hon. Member for Mayo (Mr. O'Connor Power) seemed to suppose, that the Committee could not, if they pleased, refuse to accede to the proposal to postpone the clause; but that they could not discuss it, with any prospect of coming to a reasonable decision upon it, when it was the wish of the Government that it should be brought up on a future occasion in an amended shape. The remaining clauses of the Bill would not be affected by the postponement of that which was before the Committee; and he hoped the Committee would set their face against the unusual course of attempting to prevent the Government from postponing a clause in a Bill which was a Government measure, and which they thought ought to be postponed.

§ MR. RYLANDS
said, that so far as he was concerned, he should not feel himself justified in refusing to permit the Government to postpone a clause which it was not, in their opinion, desirable that the Committee should at once proceed to discuss. He thought, however, the Committee had great reason to complain of the course which had been pursued by the Government on the present occasion. The clause which it was proposed to postpone was one of the most important clauses in a Bill which was itself the result of very se- 573 rious deliberations, partly of a Select Committee, which was presided over by the hon. and learned Member for Oxford (Sir William Harcourt). The Bill was drawn by the Government draftsman, and put through some sort of War Office crucible, out of which this precious piece of legislation came in the form in which it had been presented to the House. Yet the Committee were told that afternoon that it was necessary to postpone one of the most important clauses of the Bill, because, notwithstanding all the preliminary manipulation to which it had been subjected, it required to be altered so that it might have some chance of being accepted by the Committee. The discussion, he might add, was satisfactory, at all events, in one respect—that it showed that the Government were alive to the fact that the clause needed amendment, and that a considerable change must be made in it before it was agreed to. As to Parliamentary practice, he could only say that he recollected very well that when the Ballot Bill was passing through the House, and when the Government of that day desired to postpone some of the clauses, hon. Gentlemen opposite, and even some right hon. Gentlemen who now occupied seats on the Treasury Bench, objected to that course being taken, with a view of obstructing the passing of the Bill. He had no wish to obstruct the passing of the present Bill; and, therefore, he would not vote against the postponement of the clause, although he thought it hardly fair to postpone it, under all the circumstances of the case. He hoped, he might add, that some of his hon. Friends near him would not carry out what they had announced to be their intention—to oppose the further progress of the Bill that afternoon, because to do so might result in involving the Committee in an unseemly struggle.

§ MR. OTWAY
could not see that there was any valid objection to the postponement of the clause; but an appeal had been made to the Government which appeared to him to be of a most reasonable character, and to which they ought, he thought, to give a more satisfactory answer than he had yet heard. The Bill contained, in his opinion, a great deal that was good, and he had no desire to impede its progress through the House. It had, however, one 574 blemish, which several hon. Members had been endeavouring up to the present time, but not quite effectually, to remove. There was, at the same time, no good reason why they should not avail themselves of every legitimate opportunity to discuss the question of flogging; and it was only fair to ask the right hon. and gallant Gentleman the Secretary of State for War whether he had determined upon the principle on which flogging should be inflicted under the operation of the clause? As he understood the matter, those hon. Members who objected to the postponement of the clause would not be disposed to persevere in that course if the right hon. and gallant Gentleman would inform them that it was his intention that corporal punishment should not be inflicted except by order of a court martial. He understood the right hon. and gallant Gentleman to have declined to answer the appeal which had been made to him in that respect, on the ground that to do so might lead to discussion; but there would be no need for further discussion, if he would merely state the principle on which it was proposed that the new clause should be based. He hoped it was a misapprehension to suppose that the right hon. and gallant Gentleman's object in wishing to postpone the clause was in order that he might make more stringent still the rules relating to the infliction of corporal punishment. But so erroneous, he felt satisfied, was that supposition, that he was astonished the right hon. and gallant Gentleman had not seen the expediency, in his own interest, of responding to the appeal which had been made to him. He understood the hon. and gallant Member for Galway (Major Nolan) to have distinctly asked the right hon. and gallant Gentleman on what principle the new clause was to be founded?

§ COLONEL STANLEY
thought that the appeal was a very fair one; but he must, at the same time, guard himself against being led into a discussion of a clause which was not before the Committee. Such a discussion would, in the first place, be out of Order; and would, in the second place, be highly inconvenient. The powers of the provost marshal were very unlimited; but he had, of course, proposed to limit them, to a great extent, by regulation. The discussions, 575 however, which had taken place in that House had satisfied him that it would be possible to print many things in the Bill itself which he had intended should be the subject of regulation. Without, then, absolutely doing away with the power to inflict corporal punishment under the operation of the clause, he would endeavour to introduce words into the clause preventing its infliction except for the most serious crimes; and a list of those he proposed, as he had promised the Committee the other day, to insert in a Schedule. He would define the circumstances under which corporal punishment might be inflicted, and would endeavour, in other ways, to restrict its application very considerably. He was unable to say more at the present moment. The time of the Committee would, he thought, be saved by postponing the clause, and by the production, in its stead, of a clause which would be more acceptable to them. When that clause was before the Committee, it would be for them to consider what modifications, if any, it required. Ho hoped the Committee would now allow the clause to be postponed without further debate.

§ MR. MITCHELL HENRY
said, that if the right hon. and gallant Gentleman had made, earlier in the discussion, some such explanation as that which he had just now offered to the Committee, he (Mr. Mitchell Henry) should not have so strongly objected to the postponement of the clause. He had been under the impression that the right hon. and gallant Gentleman was about to continue in the hands of the provost marshal the power of inflicting corporal punishment whenever he pleased; and if the right hon. and gallant Gentleman had only at once stated, in reply to the very humble appeals which had been made to him, that that was not his intention, much of the discussion might have been avoided, and much of the time of the Committee saved. It was in vain the Fowler spread the net in the sight of any bird; and hon. Members had so often been taken in by the postponement of clauses that they were not likely to fall into the same snare again. He was glad the right hon. and gallant Gentleman had said what he had just told the Committee, and he should offer no further opposition to the postponement of the clause.

576

§ MAJOR NOLAN
insisted upon the necessity of a correct record being kept of the punishments inflicted by the provost marshal.

§ MR. O'DONNELL
wished to say that, after the explanation of the right hon. aad gallant Gentleman the Secretary of State for War, he would not persevere in his opposition to the postponement of the clause.

MR. O'CONNOR POWER
should offer no further objection to the postponement of the clause; but need hardly say that, had it not been for the explanation of the right hon. and gallant Gentleman the Secretary of State for War, he should have felt it his duty to move that the Chairman report Progress.

§ Clause, by leave,postponed.