Offences as to Enlistment. (Hansard, 30 June 1879)

§ MR. PARNELL
said, that he had a small Amendment to make in this 1003 clause. It was provided by the clause that any person who made a false answer to any question in the attestation paper should be liable to certain punishments. He thought it would be right to insert, after the word "person," the word "wilfully," in order to provide that the false answer to be punishable should be wilfully made.

MR. ASSHETON CROSS
said, that he did not like the word "wilfully;" but if the hon. Gentleman would withdraw that Amendment, he would consent to insert the word "knowingly."

§ MR. PARNELL
said, he had a further Amendment to propose—namely, to leave out the words " at the discretion of the competent military authority." The clause would then run— If a person guilty of an offence under this section has been attested as a soldier of the regular forces, he shall be liable to be proceeded against before a court of summary jurisdiction, or to be tried by court martial for the offence. His reason for moving to omit those words from the clause was to provide that every person who had been enlisted should not be tried before a military court for an offence committed before his enlistment. He should move, subsequently, an Amendment to insure that the offender was only prosecuted before a court of summary jurisdiction. It could not be right that a person who was entirely ignorant of military law should be punished by a military tribunal.

§ MAJOR NOLAN
said, that the Amendment seemed to him to be much the same as the present Mutiny Bill; but, so far as his recollection went, a person who committed an offence under this section was usually only tried by the military authorities after being six months in the Army. He believed that Clause 48 of the Mutiny Act was similar to this provision. He thought that if the present practice were made the law, and words were introduced into this clause providing that where an offence was discovered before six months had elapsed, it should be dealt with by the Civil Courts, and, after that time, twice by the military authorities, then practical 1004 justice would be obtained, and they would be keeping to the old rule.

§ MR. A. H. BROWN
remarked, that when an offence was discovered and punished immediately after attestation, the civil courts would probably deal with it; but, where it was only discovered when the offender had been some time in the Army, then the offence would be dealt with by the military authorities.

MR. ASSHETON CROSS
said, he was much of the same opinion as the hon. Member who had just spoken.

§ Mr. PARNELL
thought that the hon. and gallant Member for Galway (Major Nolan) had mistaken the intention of this Amendment. His object was to provide that, in the case of a person who had not been a soldier, but had only been attested, that he should be tried by the civil authorities, instead of the military authorities. A man, who was not a soldier at the time he committed the offence, ought not to be tried by any but a Civil Court. He might observe that there were offences which this Bill made triable by a court martial which could very well be tried by Courts of Civil Judicature. He did hope that the right hon. Gentleman the Home Secretary would agree to the Amendment; for it was a very reasonable thing to say that when a recruit made a false answer on his attestation paper, before the process of enlistment was completed, he should be punished by a Civil Court.

MR. ASSHETON CROSS
would be very sorry if the old manner of enlistment were revived. The whole process of enlistment had now been so completely altered, and had been surrounded by so many safeguards, that he did not think that there was the smallest necessity for this Amendment, and he, therefore, hoped that it would not be pressed.

§ MR. BIGGAR
agreed with his hon. Friend the Member for Meath, in thinking that it was only fair that the Civil Courts should try a man for an offence committed while he was still a civilian.

§ MR. O'SHAUGHNESSY
was very much of the same opinion as the hon. Member for Wenlock (Mr. A. H. Brown). Supposing a man was discovered to have committed the offence within six months after the attestation, it might be provided that he should only then be tried by a Civil Court; but that if discovered at the end of six months, then there was no reason 1005 why he should not be dealt with by a competent military authority, who might send him over to the civil tribunal, or deal with him itself.

§ MAJOR NOLAN
observed, that the only false answer that could be practically given, under this clause, would be the answer with respect to age. Other false answers in the attestation paper would be dealt with under other clauses, by which much more heavy penalties were inflicted. The matter was not, therefore, of much practical importance.

§ MR. O'DONNELL
remarked, that under this Bill severely graduated penalties were provided to follow conviction by courts martial. Under Clause 80, a man who was sentenced to a certain term of imprisonment was liable to general service, and might be sent abroad—that was, he would be made to undergo penal servitude. There was a danger, if this clause were retained, that the court martial might give a man sufficient imprisonment to qualify him for penal foreign service, in addition to his sentence. There was a great tendency in the Bill to attach penal consequences to sentences by courts martial. A man would find, under the Bill, that the result of having got so much punishment was that he was liable to other penal consequences of some kind. Therefore, he thought that they ought to provide, by this clause, that an offence committed while a man was a civilian should be dealt with, not by a court martial, but by a civil tribunal.

§ MR. PARNELL
suggested that the period should be limited to six months, and that a Proviso should be inserted, securing that the offence should also have been discovered within six months; otherwise, they might have a military authority discovering the offence, and yet not bringing the man to trial within six months after. He begged to withdraw his other Amendment.

MR. O'CONNOR POWER
observed, that this discussion had suggested to him an Amendment which appeared to be very necessary in this clause. He would suggest that the word " soldier " should be substituted for the word "person," and that would make it clear what they aimed at. The sub-section would then run thus— 1006 If a soldier guilty of an offence under this section has been attested as a soldier of the regular forces, he shall be liable, at the discretion of the competent military authority, to be proceeded against before a court of summary jurisdiction, or to be tried by court martial for the offence. He thought that carried out the original intention of the clause.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
pointed out that in the Definition Clause this point was dealt with.

§ MAJOR NOLAN
observed, that when they did come to the definitions, they would have to go back a very long way. The Solicitor General was perfectly right in saying that at present the clause did include this matter; but the word " soldier " would probably give rise to a very important discussion; and, therefore, they ought not to trust much to the present definition. He was sure they would have very great difficulty when they came to the Definition Clause.

§ SIR ALEXANDER GORDON
would really like to understand whether the recruit was liable to be taken before a magistrate and sworn in the very minute that he had been enlisted, and that no time at all was to be allowed for reflection? It was a very serious change to make; for ever since the year 1688 it had always been laid down that 24 hours must pass before the attestation. That was contained in the very first Mutiny Act passed after the Revolution, and it had been retained in all of them since. Many a young man might be inveigled, against his will, into the Service, if he was carried in this way before a magistrate at once, before he had time to turn himself round and think over what he had done. He did not understand this fully, nor until he heard the remark made a few moments ago.

§ COLONEL STANLEY
replied, that the point was very fully discussed when the clause was before the Committee, and it was then adopted unanimously. Formerly, a man was allowed 24 hours' notice; because what was held to be the act of enlistment then was slipping a shilling into his hand. He himself thought that system of keeping a man hanging about 24 hours before he was attested was very objectionable; and he proposed to make the legal enlistment date from the attestation—from the time when the recruit went before the magistrate in the Court and made a civil engagement to 1007 serve the State. They could not go back, of course, to that question now; but, for his part, he saw no reason why there should be restrictions upon that contract, any more than on the making of any other contract. There, certainly, was a reason for this change. A lad might be half drunk, and he had a shilling slipped into his hand; the sergeant clapped him on the shoulder, and said—" You are enlisted to serve the Queen." He did not say that was the custom; but he was speaking of abuses which arose. But, under the present system, a man went before the magistrate at even, perhaps, five minutes' notice, and declared himself ready to serve the Queen, and there was no reason why he should not do so; but, then, the very important right was given him of going away within three months on payment of his expenses.

THE CHAIRMAN
pointed out that the question raised by the last two speakers was dealt with by Clause 77, which had already been passed, and was not now before the Committee.

§ MAJOR NOLAN
said, that he was going to speak on that point, but, of course, he would not now do so; although he wished to say that he was entirely with the Government in their proposals, and only regretted that they did not accept his Amendment, making it imperatively necessary that a magistrate should not enlist a man if there was any sign of liquor. Probably, a verbal mistake in the clause had led to some confusion as to the words " or attested as a soldier of the Regular Forces." Formerly, there were two words " attestation " and "enlistment." Three-fourths —probably, nine-tenths—of the officers in the Army never knew the difference between the two, although it was always cropping up. They were now about to abolish the attestation, because they were now making the enlistment what was formerly the attestation. Yet they retained the same phraseology that was in use in the old Mutiny Acts throughout this Bill, and sometimes they called it attestation, and sometimes enlistment, without making any distinction. The enlisted. soldier was sometimes drunk. The attested soldier was invariably so, now that the two processes had been rolled into one. It was of immense importance that they should. do away with the drunken stage altogether; for he did not suppose that 1008 one-tenth of the soldiers at the present time were drunk, or anything like it. They ought to get rid of the old phraseology, and either one term or the other should be adopted throughout the Bill.

§ COLONEL STANLEY
quite agreed with the hon. and gallant Gentleman. He would look into the matter, and decide on it before the Report. If the attestation was not complete, the recruit's status as a civilian remained; but if he was attested, and an offence turned out to have been committed in this section, then he had become a soldier, and could be proceeded with under another clause.

§ MAJOR NOLAN
said, as the right hon. and gallant Gentleman had gone three-fourths of the way with him, he might as well go the whole distance. There was no payment of enlistment left now, for a man was not enlisted at all, unless he was attested.

MR. O'CONNOR POWER
must acknowledge, with all humility, that ho really did not know whether the hon. Gentlemen who had addressed the Chair were in favour of his Amendment or were opposed to it. He should like to know really what had become of his Amendment during all these negotiations?

§ MR. PARNELL
observed, that he would oblige his hon. Friend by speaking to the Question; but, really, this question of Amendment had actually a good deal to do with the Amendment. They had entirely changed the system of enlistment. Instead of the sergeant meeting a recruit and giving him a shilling, and 24 hours elapsing before attestation, what now happened? The sergeant met a likely recruit, and said" Will you enlist in Her Majesty's Service; it is a very splendid Service; there is great glory to be got in all parts of the world, and you will be a General in a very few years?" The recruit said "Yes;" and, thereupon, the sergeant gave him this form, which was to be drawn up by the Secretary of State for War, and then said—" Now, come before the magistrate." They went straight before the magistrate, without giving any opportunity of reading the form, or of understanding it, or of comprehending the nature or the extent of the questions raised in the form. Then, when they were before the magistrate, it was his duty carefully to explain, and to see that the recruit understood it; and, he would ask all 1009 practical and reasonable men whether it was likely, under the circumstances of the case, whether any magistrate would be able to know whether the recruit understood these questions or not? He knew that if he were a recruit he would defy any magistrate to find out if he understood them or not. If he were to enlist, he should not trouble about the form one way or another; but he should say " Yes" to all the questions, and make him suppose he thoroughly understood all that was asked of him, and knew all about it. That would be the case with the recruits who were not very ignorant; but when they were ignorant, it would be impossible for the magistrate to explain to them the nature of the questions he had to put; and it would be equally impossible, even if he tried to explain them, for the recruit to understand them. From the very nature of the case, the magistrate would have to be satisfied with a very perfunctory discharge of his duty, even supposing he were an experienced magistrate, which, in all probability, would not be the case. And supposing that he had been in the habit of explaining these forms to recruits, which was very unlikely, it would be almost impossible for the magistrate to explain, really and fully, the nature of the engagement the man was making. Therefore, he thought it both important and necessary that the recruit should have the power of studying these forms for himself. If it was explained to him he got out of his depth at once, and had no chance whatever of understanding it. They must all have noticed that in reference to servants. It was the case also with clergymen. They preached long sermons on certain texts; and although they had been brought up to the Church, they were just as wise at the end of a sermon, as to the meaning of the texts, as at the beginning; whereas, if they had the opportunity to spell it out quietly for themselves, they would have been able to come to some reasonable conclusion. So it would be with the recruits, if they deprived them of the opportunity of studying these forms, and sent them before the magistrates without any interval whatever; and yet they committed them if they made any false answers. That was not reasonable; and it was not reasonable also to subject a man to the pains and penalties of a court martial. They, at least, ought to 1010 give him the opportunity of being tried by men of the same status as himself. They ought not to create the extraordinary inconsistency of making a man subject to an Act of Parliament of which he was, by the nature of the subject, entirely ignorant, and so to bring him under the operation of the military law. By this clause they made persons into soldiers, who had gone through the form of attestation, subject to military law for an offence which they had committed through ignorance.

§ MR. WHITWELL
remarked, that the hon. Member got up with the assurance that he was going to speak to the Amendment before the Committee; but he was very much afraid that he had not made a single allusion to it. He himself had had some experience in attesting soldiers, and he had never found that there was any difficulty in the recruits understanding the questions; while he always made himself perfectly sure that they had understood them before he swore them in. He did not apprehend that any difficulty would arise. At the same time, he did think it a serious matter to make a man liable to be tried by a court martial at once, the moment he was sworn in, and without experience.

O'SHAUGHNESSY
was sorry to trouble the Committee again; but ho did not think the clause would read. In the first place, a man was spoken to by a recruiting sergeant. He agreed to enlist. He went before a magistrate and was attested. Now, in the second part of the clause, they had a provision that— If a person guilty of an offence has been attested as a soldier of the regular forces, he shall be liable, at the discretion of the competent military authority, to be proceeded against before a court of summary jurisdiction, or to be tried by court martial for the offence. Now, what was the use of introducing the first part of the clause, which introduced a procedure which must be called into action within the five months of the bringing of a recruit before the magistrate? If he was correct, the first part of this clause was inapplicable. It was meant to be brought into effect after the conversation between the recruiting officer and the recruit. He would go further— If a person makes a false answer to any question contained in the attestation paper, and 1011 read or put to him by or by direction of the justice before whom he appears for the purpose of being attested," &c. It was quite plain he must make the false answer in the attestation paper, and if it was made there must be an answer made after he was attested. But that was a matter altogether dealt with in the second part of the clause; and what, then, was the use of the first part? It evidently referred to a false statement knowingly made in the regular attestation, because it was not merely a false statement made knowingly in the attestation paper, but also a false answer to the questions put to him by the justice before him. It appeared, therefore, they were dealing, in the first part of the clause, with a matter which was dealt with in the second part of the clause.

§ MR. A. H. BROWN
thought the hon. and learned Member was not quite correct. The first part of the clause dealt with the case where a man came before a Justice of the Peace for the purpose of being attested. In the course of questions put to him by the justice, the magistrates found out that the man was making knowingly false answers. But the recruit had not been attested when the magistrates discovered these answers were knowingly false; for if the hon. Gentleman would look to Clause 78, he would find that the recruit was not attested until after the answers had been given and the man had been sworn. Consequently, if the Justice of the Peace found that the man was making false answers knowingly, the man could then be tried under the first part of the clause; but after he had made these false answers, and had been sworn in, he came under the second part of this clause; and, under it, he could be tried by court martial, or by a court of public jurisdiction. The real difference in the two was this—that after the discovery that a man had made false answers in his attestation, within six months, he was sent to the civil power to be tried before a Court of Summary Jurisdiction; but if the discovery was made after the six months, then he was tried by a court martial. He believed the clause to be very simple and well-worded.

§ MR. PARNELL
observed, that this explanation only put them in a more extraordinary position. If the magistrate interrupted the attestation, and refused, in fact, to enlist a recruit, the 1012 first part was entirely illusory. If he found that the man was making a false statement in the preliminary process, he stopped it, refused to put any more questions, according to the clause, and sent the man before a Court of Summary Jurisdiction to be tried for the offence; but where in the clause was the power of the magistrate to do that? It did not appear anywhere, as far as he could understand. According to the clause, the magistrates had only power to put certain questions to the recruit, from the power which was supplied him by the War Office, under the Summary Jurisdiction Act. The magistrate, also, had no power to order a recruit to be summoned for making false statements during the process of attestation. If there was to be this change in the law, they would have to have other changes introduced also; for otherwise, the magistrate could not punish a man for what was actual contempt of court, simply because he had come before him for enlistment.

§ MR. O'DONNELL
said, the clause struck him as being a rather curious one. Take the case of two recruits, each of them making false statements in answer to the attestation questions. One went before a rather sharp and capable justice, who found out he was telling lies in the process of examination, and thereupon the man was subjected to the lighter penalties imposed by the less serious procedure of the first part of the clause; the other recruit made exactly the same kind of false statements, appeared before a rather stupid justice, who did not find out he had made false statements until the attestation was over; thereupon the recruit attested by the stupid justice came under the more severe procedure of the second part of the clause. Therefore, the recruits, it appeared, were not punishable in any proportion to their guilt, because they were, probably, equally guilty, but according to whether they happened to be brought before a capable or incapable Justice of the Peace. That principle certainly appeared to him rather curious, and was another example of the singular way in which this Bill had been drawn.

MR. O'CONNOR POWER
said, if the account given by the hon. Member for Wenlock (Mr. A. H. Brown) as to the working of the clause were correct, the magistrate would be both prosecutor 1013 and judge. If the clause was to work at all, there must be some lapse of time between the period when the offence was committed and when the matter was to be re-examined in a judicial way; because it was absurd to say that a magistrate could, in the course of the process of attestation, say that the recruit had made a false statement, and at once sentence him to three months' imprisonment. If the Solicitor General, who had been good enough to define the term "soldier" employed in the second part of the clause, would point out how the two different portions of the clause were to work in a legal way, he had no intention to press his views upon the Committee, and should be happy to withdraw his Amendment; but, until then, he did not see his way to doing so.

§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
said, the clause would operate legally thus. If a man appeared before a justice, and told a falsehood—saying, for instance, that he was a single man when he was married—and the justice knew it, the justice would, by passing that man, be aiding and assisting in an offence against the law. The first part of the section contemplated the punishment of a person for that offence which the man had already committed by giving a false answer. The effect would not necessarily be that he would be punished there and then. He would have committed an offence, and would have to be summoned before an ordinary tribunal of summary jurisdiction, when, if the justice came to the conclusion that he had not offended wilfully, he would be entitled to be discharged.

MR. O'CONNOR POWER,
after the reply of the hon. and learned Solicitor General, asked leave to withdraw his Amendment.

§ MR. O'DONNELL
pointed out that the effect of the second part of the clause would be that if a soldier, not a whit more guilty than the man who, being brought before a justice, having exceptional means of knowing that he had made a false statement, were brought before a justice who did not know so much about the matter, he would, thereupon, without any additional aggravation of guilt, become punishable in consequence of the greater ignorance of the second justice. Such a law was truly extraordinary and indefensible.

§ MR. PARNELL
said, the Secretary of State for War, having refused to put the rules and regulations into a Schedule, and also to lay them on the Table of the House, he certainly thought that he should be asked to agree to insert the Amendment which had been placed on the Paper by the hon. Member for Wenlock (Mr. A. H. Brown). He therefore intended to move to add, in page 52, line 21, at the end of the clause— Provided, That no person shall be tried by court martial for any offence under this section which has been discovered more than six months after attestation.

MR. O'CONNOR POWER
suggested " less than six months."

MR. ASSHETON CROSS
rose to Order. He thought the hon. Member for Meath (Mr. Parnell) was really playing with the Committee and uselessly occupying their time. It was evident that the hon. Gentleman had not in his own mind a clear idea of the Amendment he wished to move. It would have been more convenient had the Amendment appeared on the Notice Paper.

MR. O'CONNOR POWER
thought it quite competent for the hon. Member for Meath to endeavour to make intelligible what the hon. Member for Wenlock (Mr. A. H. Brown) had assented to, but had not the courage to put it into words. He thought the hon. Member had been very wrongly taken up by the Homo Secretary.

§ MR. PARNELL
said, that while he was repeating the Amendment the hon. Member for Mayo had suggested an alteration, and while he had turned his head round to catch the words of his hon. Friend the right hon. Gentleman rose to Order. He was quite ready to submit his Amendment in writing as soon as the Chairman had ruled the question of Order; but he pointed out to the Home Secretary that the course of interruption pursued by him was not calculated to secure the object which lie had in view.

THE CHAIRMAN
said, that the right hon. Gentleman had risen to Order because the hon. Member for Meath was not prepared with the Amendment which he had announced his intention to submit to the Committee. No doubt, if that were the case, the hon. Member for Meath might claim some indulgence from the Committee; but he must point 1015 out to the hon. Gentleman that it was not respectful to the Committee to stop, as he had done, in the midst of his speech and consult with hon. Members near him when he ought to be addressing the Chair.

§ MR. PARNELL
said, he was sorry for having appeared to show any disrespect to the Committee; but he had only imitated the example repeatedly set by Ministers, who, upon points of difficulty, even when standing at the Table of the House, frequently turned aside to consult with their Colleagues. He had frequently seen the Chancellor of the Exchequer do this; but he was quite certain that on such occasions the right hon. Gentleman had no intention of being disrespectful to the House; therefore, he hoped the Committee would not believe that he (Mr. Parnell) had any such intention. The hon. Gentleman then proposed, in page 52, line 21, at the end of the clause, to add— Provided, That no person shall be tried by court martial for any offence under this section which has been discovered within less than six months after attestation. Question put, "That those words be there added."

MR. O'CONNOR POWER
said, that the expression "whether otherwise punished or not," contained in line 25 of this clause, was of a very objectionable character, inasmuch as it seemed to contemplate two different kinds of punishment for the same offence—namely, that of fraudulent enlistment. His idea was that when any offence was committed there should be but one trial and one punishment. The objection to this part of the present clause was also the principal objection taken to Clause 92, which the Committee had abolished. The right hon. and gallant Gentleman had consented to strike out that clause; and he (Mr. O'Connor Power) now moved to omit from the present clause the words " whether otherwise punished or not."

§ MAJOR NOLAN
said, that formerly, when a man enlisted in a regiment and 1016 afterwards confessed that he had previously enlisted in another, he was transferred back to the regiment which had a prior interest in him. He thought that principle was utterly absurd, and that nothing in this Bill was more deserving of support than the clause which provided that a man should be compelled to serve, if the competent military authority so directed, in the regiment in which he enlisted after having enlisted in another. He saw no objection to the omission of the words " whether otherwise punished or not," because there was no reason for treating service in another regiment as a punishment.

§ COLONEL' STANLEY
apprehended there would be no objection to the change proposed.