§ Order for Committee read.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Secretary Stanley.)
§ SIR HENRY HAVELOCK
, in rising to move, as an Amendment, the following Resolution:—That this House, while fully recognizing the acknowledged and undoubted right of the Crown to remove any officer from the Army at will and without trial, is of opinion that no officer accused of any military offence should be placed compulsorily upon half-pay, or removed from his appointment, cither in consequence of the opinion or recommendation of a court of inquiry, or of the evidence given before such a court, without being first afforded the opportunity for the public investigation of the charges made against him, on sworn evidence, before a general court martial,said, that his proposal was not intended in any way to restrict the well-known Prerogative of the Crown. The Army 1506 of this country was a Royal Army—that was to pay, every officer in it held his commission at the will of the Crown, who could at any time recall it; and he should deprecate in the strongest manner any change in those relations of the Army to the State. If there were to be any changes introduced, they would be in consequence of a continuance of the abuse to which he wished to call the attention of the House. The only other way in which, according to military law, an officer could be removed from the Army was by sentence of a court martial; but latterly a new tribunal had sprung into existence, altogether irregular and unconstitutional, which, while it professed only to make inquiries for the information of the commanding officer, yet, in reality, produced the same effect as a court martial, and passed final sentence upon an officer before he was regularly arraigned. That tribunal had been repeatedly condemned in former days by the highest military authorities at a time when military discipline was fully as firmly administered as at present. No notice was to be found of the practice to which he alluded in this military Code. The Secretary of State for War would probably say that his (Sir Henry Havelock's) Amendment concerning it was foreign to the scope of the Bill, for the reason that the Bill did not contain any mention of Courts of Inquiry at all. But that was the very matter of which he (Sir Henry Havelock) complained. This Bill professed to contain regulations with regard to the whole of our military discipline and the administration of our military law. Though the practice of holding Courts of Inquiry was so habitual as to have become part of the daily routine of our Army, it was maintained by some that that quasi-tribunal should be entirely ignored and left out of this Bill. He thought it was the duty of the House to take care that no portion of an acknowledged habitual military practice should be left out of the view of the Bill. The mode of selecting officers for a Court of Inquiry was not defined anywhere. The selection of them was left to the discretion of the commanding officer. On those grounds, the selection of officers was liable to very grave—he would not say suspicion, but, at all events, dissatisfaction. Then, again, there were four other objectionable features in the constitution of these courts—First, the 1507 officers composing the courts were not sworn; secondly, the witnesses were not sworn; thirdly, the accused person, if there was one, was not always afforded an opportunity of being present, and, consequently, he had no opportunity of cross-examining the evidence against him; and, fourthly, the decision of such courts, though it might form the basis of the future action of the authorities in regard to such accused person, was not in the majority of cases communicated to him. The hon. Member for Dundee (Mr. E. Jenkins) had spoken of a Court of Inquiry as a secret and irresponsible tribunal. He (Sir Henry Havelock) was bound to say that though in terms inaccurate, the allegation of the hon. Member was substantially correct. The Duke of Wellington, from the earliest period of his career, after having had much experience of Courts of Inquiry, had evinced a strong and decided dislike to them, and had said they ought not to be called courts at all. His unfavourable experience of them began with the inquiry in connection with the Convention of Cintra. He declared that when an officer did anything wrong he would send him to be tried, not by a Court of Inquiry, but by a court martial. His practice was in accordance with that opinion, and Lord Hill concurred with him in the view he took on the subject. Both of those distinguished commanders, he might add, entertained the greatest objection to placing officers penally on half-pay, against which his Resolution was also directed. Lord Macaulay was also opposed to the putting an officer on half-pay as a punishment. He might further observe that when it had been suggested that Courts of Inquiry should be allowed to take evidence on oath, the Duke of Wellington decided that they should not be permitted to do so, because they might, in consequence, be brought into rivalry with, and tend to supersede, the proper courts for the Army—general courts martial. If this objection prevailed before, it had double force now; for power was given by the Bill now before the House to the Secretary of State and the Commander-in-Chief, by a Court of Inquiry—that is, by a machinery of investigation not possessing any attribute of a judicial body—first of all, to put an officer on half-pay, under the operation of the Mutiny Act, as the result of proceed-, 1508 ings initiated, they knew not by whom, and carried out secretly, and withdrawn from the purview and criticism of that House; and, secondly, it contained also the power of following a half-pay officer into quasi-civil life, and bringing up against him charges to be judged by military law. This double action would be taking away a Constitutional check which had hitherto guarded, under the scrutiny of the Representatives of the people, the rights and liberties of the subject in connection with the Army, and creating a despotism which he trusted the House would unanimously refuse. Under such a system, they would be relegated to an irresponsible authority such as never before existed in this country. For, as the proceedings of Courts of Inquiry had always been held to be privileged and confidential, it would be a sufficient answer on the part of the Secretary of State that the recommendation which he had made was in accordance with the decision of such a court to put an end to all discussion on the point. It would probably be urged that there were very few cases in which Courts of Inquiry operated unjustly, and he was very glad to admit that that was so; but that fact by no means diminished the hardship which had been suffered in those instances, which, though few, were enough to procure the condemnation of the system. If he were asked to cite one or two cases, he would mention, in the first place, the well-known case of Colonel Dawkins, into the merits of which he would not enter; but which had been aptly stated and described by the hon. Member for Finsbury (Mr. W. M. Torrens) in the year 1874. He (Sir Henry Havelock) must be understood as not having the slightest sympathy with the utterly indefensible language which that gentleman had latterly used; but he must point out to the House that, if anything could be held sufficient to justify it, it would be that, in the words of Lord Chief Justice Cockburn—The position of military law and civil law which refused to take cognizance of acts done by military authority in relation to military discipline, have left him under a sense of intolerable injury and wrong.The hardship of that case was that the offence with which Colonel Dawkins was charged was easily susceptible of proof, and might have been investigated by a court martial. It would have been 1509 better in that instance to have ordered a court martial than to have removed him from the Service on the recommendation of a Court of Inquiry; at any rate, if that course had been taken, both the grievance and the scandal would have been avoided. There was another and oven more glaring case that might be mentioned—namely, that of Captain Hawtrey, an officer who had somehow incurred the displeasure of his superiors. He had served the country 28 years; for 14 years of that time as a private soldier in the ranks, and had obtained a commission as captain by his own merits—a circumstance which implied not merely that he was a man of steadiness and industry, but also of good character as well as capacity. That was proved by the fact that he held a responsible position as captain of orderlies at Netley, where the accounts that passed through his hands were of an important and considerable character. In 1874 Captain Hawtrey fell under the displeasure of his superiors, and his case was dealt with by a Court of Inquiry; but he was not asked to attend the court, or to cross-examine the witnesses against him. He was kept under arrest for seven months, and repeatedly, but in vain, asked to be allowed to see the allegations against him. He was never furnished with any statement of the charges made against him; and, as he (Sir Henry Havelock) was informed that an examination showed the perfect correctness and accuracy with which his official accounts had been kept, it was not clear on what the Court of Inquiry had based their recommendation that he should be directed to resign. He did send in his resignation under compulsion, and had not since been able to obtain any redress; nor had he received any reward for his long and faithful services. In the absence of other information, he could only give the officer's own statement as to the cause of his dismissal. He believed, he said, that he had made himself obnoxious to some person above him by his tenacity of opinion as to the quality of certain stores furnished, and that that led to the proceedings by which he had been so greatly prejudiced. It was, he contended, of the utmost importance that no officer should be placed on half-pay who should be accused of a military offence under this Act, or be removed 1510 from his appointment in consequence of the recommendation of any Court of Inquiry without having an opportunity first of meeting the charges made against him before a general court martial. When once such charges were made and challenged by the accused, it should be in the power of any officer to demand a court martial; and he hoped that before the discussion closed they would receive some assurance from the Secretary of State for War, that in future Courts of Inquiry would be more limited in their operation, that they would be recognized as a portion of our military law, and that rules would be framed for them which would prevent such hardships occurring as those to which he had referred. The Resolution he was about to move was moderate and limited in its scope. It would leave the Royal Prerogative untouched in any degree. It did not seek the abolition of Courts of Inquiry, which, in their proper place and performing their proper function of preliminary investigation, were useful bodies; it only sought to establish that they should not be substituted for courts martial in judicial investigation. What it sought was that henceforth officers should not be placed outside the pale, and beyond the protection, of the law. If the Crown removed an officer without reason assigned, he could return to civil life without an irremovable stigma upon his character; but if removed after a secret inquiry, he would be rendered, as it were, an outcast, and for the residue of his life would be subject to an irremovable stigma, because he would have had allegations made against him and acted upon, without his having been afforded an opportunity of meeting his accusers face to face. The anomaly of the case he had made out was made still more glaring by the fact that the status of a private soldier under the Bill was very different from that of an officer. His rights in this matter were scrupulously guarded. The private soldier could appeal to a court martial if his pecuniary interests were affected to the extent of a single shilling; but the officer was obliged to leave that which he valued even more than his life—his honour and his social position—to the decision of a Court of Inquiry. He need scarcely add that nothing he had said was intended to reflect upon the 1511 military administration of His Royal Highness the Commander-in-Chief. He did not desire to pay any compliments; but he must say he believed that the general fairness and justice of the military administration of the country would stand the closest scrutiny and comparison with that of any other Army in the world. Every officer in the Army knew the conscientious minuteness with which His Royal Highness endeavoured to make himself acquainted with the details of every case brought before him—a fact which gave entire confidence and met with the full acquiescence of every officer of the Army. Nor was it intended in any way to reflect upon the Secretary of State for War, who, he believed, if left to deal with this question, would do so in the direction suggested by his Resolution, which was directed against what he might call the secret use of an irresponsible power, set going they did not know how, or by whom, and by which the reputation and character of an officer previously unstained and unsullied might be whispered away without any opportunity being afforded him of being heard in his own defence. No doubt, Courts of Inquiry, if used properly, were very useful; but, in his humble judgment, it was desireable that a clause should be inserted in the Bill clearly defining what the functions of such courts were. The British Army had nothing to be ashamed of; it had nothing to hide. There should be no part of its practice, therefore, that was underhand and concealed. He begged, in conclusion, to move the Amendment of which he had given Notice.
To leave out from the word "That" to the end of the Question, in order to add the words "this House, while fully recognising the acknowledged and undoubted right of the Crown to remove any officer from the Army at will and without trial, is of opinion that no officer accused of any military offence should be placed compulsorily upon half-pay, or removed from his appointment either in consequence of the opinion or recommendation of a court of inquiry, or of the evidence given before such a court, without being first afforded the opportunity for the public investigation of the charges made against him, on sworn evidence, before a general court martial under the provisions of this Bill,"—(Sir Henry Havelock,)
§ Question proposed, "That the words proposed to be left out stand part of the Question."1512
§ SIR WILLIAM HARCOURT
said, he rose thus early in the debate, in order to clear up the points on which they agreed and those on which they disagreed. He would commence by premising that there were some points in connection with the subject under the consideration of the House about which there could be no difference of opinion. It must be admitted that there was a very strong feeling in the Army, and out-of-doors, that Courts of Inquiry were sometimes employed for purposes for which they ought not to have been employed, and that the system in reference to these Courts of Inquiry ought to be changed. They were all agreed upon those points, and the only question was, how the evil was to be remedied. They were all agreed that Courts of Inquiry ought to be made the subject of regulations which every officer should know and understand, and that those regulations should lay down the cases to which Courts of Inquiry should apply, the manner in which they should be conducted, and the consequences which should follow their decisions. They were also agreed that the charge brought before a Court of Inquiry should be communicated to the party affected by it, find that the party affected should be heard in his own defence. He was of the same opinion as his hon. and gallant Friend who had just sat clown (Sir Henry Havelock), that these courts should be recognized as part of our military administration. He was far, however, from accepting the Resolution of his hon. and gallant Friend, because in that Resolution he asked, in point of fact, what was quite a different thing—namely, that no man should be removed from an appointment or placed on half-pay without a court martial.
§ SIR HENRY HAVELOCK
I expressly guarded myself on that point. My desire is that no man shall be removed from an appointment, or placed compulsorily on half-pay, who has been accused of a military offence under this Act, without a court martial.
§ SIR WILLIAM HARCOURT
said, then the argument of his hon. and gallant Friend came to this—that the greater penalty of dismissal might be inflicted without trial; but when they came to minor offences and their penalties, an officer would be entitled to a court martial. He could not see how such a Resolution could be accepted by the House. 1513 He failed to see the logic of a proposition, in accordance with which a man might be removed altogether from the Army without the assignment of any cause, and without resort to any tribunal, while he could not be removed from an appointment for which he might be totally unfit without the interference of a court martial. Surely courts martial were not to be confined to putting a man on half-pay or removing him from his office. These were not really courts. The term "court," as applied to inquiries of this nature, was as a great a misnomer as that other unfortunate term, "Judge Advocate," applied to a man who was not a Judge at all. As he understood the question, a Court of Inquiry ought never to be resorted to in any case in which a court martial was applicable. If that, principle were only laid down, as he hoped it would be, the object of his hon. and gallant Friend would be obtained. Those cases only should be sent to Courts of Inquiry which were not fit for trial by a court martial. To put a hypothetical case—suppose it to be alleged to the military authorities that a particular officer suffered from such infirmity of temper as to make him unfit for command—and surely there was no case in which it would be more necessary to remove the individual from the Army—that would be a case not triable by a court martial, but triable by a Court of Inquiry. According, however, to the principle of the Resolution, such an officer could not be removed from his appointment without a public investigation of the charges made against him on sworn evidence before a general court martial. To lay down such a principle as that would, he thought, be to destroy the discipline of any Army in the world. How could such an officer as he had referred to be removed at the present time? He could be removed simply on the authority of the Crown, by the authorities striking his name off the list without reason assigned. Why should that course be preferred to a resort to a Court of Inquiry properly constituted? His hon. and gallant Friend said that less stigma attached to the name of a man who was struck out of The Army List without the interference of a Court of Inquiry than to a man whose case was tried by such a court. He, however, failed to see how that could be so. A Court of Inquiry would be properly and legitimately used in such a case as that which he had sup- 1514 posed, and he could not conceive how such courts could be dispensed with in similar circumstances. It was far better that a man should be removed by the advised act of the authorities than by their unadvised act. He quite agreed that Courts of Inquiry should never be permitted to be substituted for courts martial. A man might be removed from an appointment for many causes which were not triable by courts martial, and for such cases Courts of Inquiry must continue to exist, unless, indeed, it was to be laid down that a man could not be deprived of an appointment or situation in the Army except for misconduct. The adoption of such a principle as that would be to revolutionize the tenure of every post in the British Army, and to turn it into a tenure "quamdiu se bene gesseret." He saw no necessity for incorporating such regulations as were proposed in an Act which was to deal solely with military offences. Such offences ought to be dealt with by the military authorities, and if any plan was adopted which would alter that plan, it could only have the effect of weakening the authority of courts martial—a circumstance which could only be deplorable. Beyond that, Courts of Inquiry might very well be kept out of the measure as statutory tribunals; and if they were to be dealt with at all, he would suggest that the Secretary of State for War should undertake to deal with them in another measure.
§ COLONEL STANLEY
said, he demurred to the Amendment of the hon. and gallant Member for Sunderland (Sir Henry Havelock) for the reasons which had just been stated by the hon. and learned Member for Oxford (Sir William Harcourt). He admitted the desirability of placing it upon record, and beyond all doubt, that Courts of Inquiry, whatever might be their application for legitimate uses, were not to be strained so as to supersede courts martial. He was, further, willing to admit that if in the course of an inquiry circumstances should indirectly come out affecting the character or conduct of any officer or officers, sufficient to justify further examination, it was not to be understood that the mere holding of that inquiry, because it might directly refer to another subject, would bar proceedings by court martial. He was bound, however, to reserve the power of the Crown to dispense with the services of any soldier or 1515 officer, even without trial; but he thought that where Courts of Inquiry had assumed the judicial function they had gone beyond their duty. He had gone very carefully into the question; and had endeavoured to ascertain whether rules could be made for the guidance of Courts of Inquiry which, although they might not be embodied in the Bill, might nevertheless be equally operative. Rules in a rough form had been drawn up; and under them it would be provided that a Court of Inquiry should not be a judicial body; that it could not examine witnesses on oath; and that it should not have the power of compelling the attendance of witnesses; but that its duties should consist in collecting evidence, as far as it possibly could, and in reporting facts on any matter connected with the service upon which the officer in command might have a difficulty in arriving at a conclusion. Another point which would be provided for was that, if practicable, the person concerned in the result of the inquiry should be present during the whole time that the witnesses were being examined; but that, should he object to be present, the proceedings could nevertheless go on in his absence. To such regulations he was willing to agree, but could not accept the Amendment of the hon. and gallant Gentleman. He hoped the House, with that understanding, would be allowed to go into Committee. With regard to the placing of any rules on the subject within the Bill itself, he shared the doubt which the hon. and learned Member for Oxford had expressed upon that point. His fear was that if they were to lay down in the Statute any rules for Courts of Inquiry, in order to guard against one evil, they might fall into an even greater evil by giving those Courts a statutory weight and importance which they did not at present possess. The matter had been considered over and over again; and it had been decided that, as there might be a great fear of Courts of Inquiry clashing with the legitimate functions of courts martial it was better, upon the whole, to withhold from the former anything like a quasi-judicial character.
§ MR. E. JENKINS
regarded the statement of the right hon. and gallant Gentleman as satisfactory, so far as it went; but he thought that upon this subject the Government might have gone a little further. Indeed, he thought that the 1516 right hon. and gallant Gentleman the Secretary of State for War had not addressed himself particularly to the real point which had been raised by the hon. and gallant Member for Sunderland (Sir Henry Havelock), which was the question of the dismissal of officers without any court martial being held. His hon. and gallant Friend pointed out that the Courts of Inquiry were used for other purposes than those which they ought to be used for, and demanded that the abuses should be removed. They ought to insist upon the principle that a Court of Inquiry should not be the final Court; but that an officer charged with a military offence should be entitled to demand a court martial. The question was this—was it a good thing, granting the Prerogative right of the Crown, and admitting that there might be cases in which an officer from temper, or other instances, ought to be asked to withdraw from the Service, ought the Crown not to exercise that Prerogative on its own responsibility, and not shelter itself behind the irresponsible proceedings of a Court of Inquiry? It could not be wrong to place restrictions upon cases where Courts of Inquiry were to be held, and he had no objection to their being used preliminary to trials, in the same way as were Grand Juries. He urged the Government to adopt the Motion of the hon. and gallant Member for Sunderland, and that the result would be that we should have justice done to every officer and soldier in the Army, as that was the only means by which they could disabuse the public mind of that feeling which at present prevented men from entering the Service.
§ SIR WALTER B. BARTTELOT
sympathized with all that his hon. and gallant Friend the Member for Sunderland (Sir Henry Havelock) had said. He had put the whole question temperately and fairly, for there was no denying the fact that a great grievance had been felt in the Army with reference to these Courts of Inquiry. Strong cases could be produced, in which Courts of Inquiry had been used far beyond their legitimate functions, and great injustice had been the result. His hon. and gallant Friend had, therefore, done good service by placing the Resolution on the Paper, and giving the House an opportunity of quietly and calmly discussing the question of how far officers were, under the present system, exposed to hardships. 1517 He was also bound to say that the hon. and learned Member for Oxford (Sir William Harcourt) had placed as fairly before the House as it could be done that all offences that ought to have been tried by court martial should not have been relegated to Courts of Inquiry. His right hon. and gallant Friend the Secretary of State for War, however, having accepted the principle of the Amendment, reserving certain rights and Prerogatives, which ought to be reserved to the Crown, of dismissing from the Service officers who, although not guilty of any military offence, might be in other respects unfit or unworthy to hold a commission, it would be impossible to pass the Amendment, which would give an officer power to retain his commission, unless a court had absolutely condemned him. If his right hon. and gallant Friend would consent, before the third reading of the Bill, to place on the Table the Resolutions he proposed to introduce to regulate the proceedings of Courts of Inquiry, they would be able to discuss them, and so might get rid of the Amendment, and be allowed to go into Committee.
§ COLONEL MURE
said, that Courts of Inquiry could not pronounce a verdict; but the Reports influenced those who had to use the Prerogatives of the Crown.
§ COLONEL STANLEY
said, that the Notice he had read he proposed to embody in a Circular, or some other way, and expressly state that when an officer's conduct and character came under investigation the Courts of Inquiry should only report facts.
§ COLONEL MURE
said, that the whole matter lay in a nutshell. What was wanted was, that in cases where an officer's conduct or temper had an evil effect upon his company or regiment—a matter on which the superior authority could not frame a distinct charge in order to bring him before a court martial—the Prerogative of the Crown should be exorcised quietly, without incurring the scandal which had hitherto accrued from the proceedings of Courts of Inquiry, which irregularly and most unfortunately had gradually assumed the functions and powers of courts martial. But cases where there was a specific and culpable offence, such as embezzlement, so repulsive to every honourable mind, ought to be tried by a court martial; and there were other cases—where, for instance, an officer had 1518 disobeyed an order—which should also be tried by court martial, it being clear that such a case was not one for the exercise of the Prerogative. There were cases in which the Prerogative of the Crown could not be exercised, and there were cases of great social scandal which came before other Courts, and in which the to be In short, it was very difficult, although very desirable, to lay down clearly and distinctly in an Act of Parliament what cases should be dealt with by Courts of Inquiry, what by Prerogative, and what by courts martial; but cases of grave public scandal could wisely be dealt with by the exorcise of the Prerogative, and were not always cases for court martial.
§ SIR WILLIAM FRASER
Sir, the argument of the hon. and learned Member for the City of Oxford seems to me to be more forensic than logical. If we admit that the larger contains the less, there might be force in this argument; but in this case we cannot admit that, for it is not the fact. If the Crown should, because it has the power of dismissing an officer completely from the Army, be given the power to place him upon half-pay, this objection could be raised. To cashier an officer and absolutely ruin him, he must be found flagrante delicto, caught red-handed. In these days—and in any day—no Minister, I hope, could be found to advise the Crown to ruin an officer, except under these circumstances. But to reduce him to half-pay," and to "put him away privily," would not be a difficult matter, nor would it excite public indignation or even public attention. We must consider that in these days great pressure can be brought to bear upon a Minister, in Parliament and outside. There was a case not many years ago, which excited immense attention for many months, where public feeling was so excited, and so unjustly excited, against an officer that had he not been, fortunately for him, in India and not in England, his life would possibly have been sacrificed. One Member of this House, at any rate, is not likely to forget the circumstances under which he defended that officer. We will suppose a Government, not as the present is, as we saw a few nights ago, with a large majority in this House, but a weak, tottering Government. Suppose powerful excitement to exist out-of- 1519 doors, and the Government to be on its last legs, what chance would an officer have of justice if the Minister were empowered bylaw to reduce that officer from full-pay to half-pay; and reduce him from enough to live upon to absolute want? I will quote a case, because the leading facts are well known, because this case is historical, because it will for ever be a disgrace and an example of public injustice—I allude to the case of Admiral Byng. He was found guilty of not doing enough, when attacking the French off the Island of Minorca. An error of judgment was all that he could be found guilty of; a braver man never lived. Under the 12th Article of War he was found guilty; and notwithstanding the strong recommendation to mercy from the court martial, he was sentenced to death; such being the penalty imposed by the above Article. The court martial went farther; they petitioned to be allowed to disclose their individual sentiments, and an Act was passed through this House in one day to free them from the compulsion to secrecy of their oaths. It was carried to the Lords; but pressure being put on by the base Government of that clay, the Bill was thrown out, and Admiral Byng was shot. Now, Sir, what has occurred may occur again, and I believe it to be one of the first duties of this House to protect the lives, and, what is more important, the honour, of British officers. We know that by law now, the private soldier cannot be mulcted of his pay for a single day without the sentence of a court martial. But these Boards, appointed without the power of taking evidence on oath, have practically, though not theoretically, the power to deprive an officer of what may be essential to his existence and that of his wife and children.
§ SIR ALEXANDER GORDON
said, whatever might be the opinion of the House, he was not satisfied with the statement of the right hon. and gallant Gentleman the Secretary of State for War, inasmuch as the course suggested by him did not give the party accused the right of demanding an opinion from the Court of Inquiry, nor the light of trial before a sworn court upon sworn evidence, if that opinion should be adverse to him. Nothing less than this, he (Sir Alexander Gordon) thought, would be just to the officers and soldiers of the Army. Nor had the right hon. and gallant Gentleman placed upon the 1520 Table the Amendments by which the Bill that the House was that day asked to pass was to be brought within the limits of the Constitution. He had, however, admitted that the Bill was contrary to the Constitution of the country, and altered the relations at present existing between the Crown, the Army, and Parliament, and had stated that when Clause 178—the last enacting clause—was reached, he would tell the House how he proposed to make the Bill agree with the Constitution of the county. But this was not the proper way to treat the House, because it gave no time to hon. Members for considering the Amendments that would be proposed. Again, the right hon. and gallant Gentleman had stated that the wording of his Amendment would be the same as in that portion of the Mutiny Act which related to the Prerogative of the Crown. But he (Sir Alexander Gordon) could not understand that the Prerogative of the Crown was alluded to in the Mutiny Act at all; the reference was, therefore, incorrect. Courts of Inquiry were not according to the Law of England; he therefore objected to them, unless they were placed under statutory control, and maintained that the Crown had no right to act as Judge. Neither had it the right to say to a man, "You are guilty of misconduct," without giving that man an opportunity of being fairly tried according as the forms of the country demanded. He would not contest the power of the Crown to say to an officer or soldier, "The nation no longer requires your services, and, therefore, dispenses with them." That was a very different thing; and, besides, under that rule, a man was entitled to, and would receive, his pension, or whatever allowances he might have earned by long service. But he did contest the right of the Crown to condemn a man without a hearing. This question had always been debated upon the assumption that Courts of Inquiry had been long in use in the country; but it would be his endeavour to show that they were quite of recent origin. In the first place, he would refer to the King's Regulations which he held in his hand, and which were enforced in the Army at the time when he joined it, exactly 45 years ago that day. That volume contained no allusion whatever to Courts of Inquiry, nor did allusion to them exist in any Regulations until the year 1857, 1521 the first year of the rule of His Royal Highness the present Commander-in-Chief, up to which period Courts of Inquiry were not known, not recognized, and not approved. The hon. and gallant Member for Sunderland (Sir Henry Havelock) had informed the House that the Duke of Wellington and Lord Hill always set their faces against Courts of Inquiry, and maintained that a court martial was the proper mode of dealing with offences according to Act of Parliament. In order to show that what he (Sir Alexander Gordon) had stated with reference to Courts of Inquiry was strictly in accordance with law, he asked hon. and learned Members to refer to Comyn's Digest of the Law of England, D. 29, which laid down that—"The King cannot grant a Commission for Inquiry only, without power to hear and determine." It was this power of hearing and determining that was according to the law of England, and had ever been so since the time, he believed, of Edward III. Again, it was laid down in Vol. 7 of Coke's Reports, 12 R, 31—"That Commissions to receive evidence were appointed by King James I. somewhere about 1603." Objections having been taken to these, on the ground that they were contrary to law, the Commissioners having no power of hearing and determining, but only to inquire, the King's Ministers took the case to the Courts, where it was disputed, and came before two Chief Justices and seven other Judges, in 1607, who gave it as their opinion that—The said Commission was contrary to law, for that it was only to inquire which is against the law, for by this a man may be unjustly accused by perjury, and he shall not have any remedy; for this, that it is not within the Statute 5 Elizabeth, &c.; also that the party may be defamed and shall not have any traverse to it, and no such Commission ever was seen to inquire only (i.e., of crimes).That principle had been acted upon until the year 1857, when Courts of Inquiry were placed in the Queen's Regulations, with power to inquire but not to determine. But that power was contrary to the law of the land, for the words "oyer and terminer" were an expression of the law that no man should have his cause brought before any Court that was not competent to hear and determine. Again, it was laid down in Chitty on Prerogative, "Fountain of Justice," that— 1522The King cannot authorize anyone to holds Courts of Justice in a manner dissimilar to that established either by the Common or Statute Law of the land. It is a still more important principle that the King- cannot legally authorize any Court to proceed contrary to the English laws, or by any other rule.Now, these Courts of Inquiry, appointed by the Crown, did go against the Mutiny Act passed every year, because that Act stated that "all offences committed shall be tried by court martial." Chitty went on to say—Neither can the King grant any new Commission which is not warranted by ancient precedents, however necessary or conducive to the public good it may appear to be.The House would therefore see that all the highest legal authorities were against the legality of Courts of Inquiry. He would now, with the permission of the House, refer to a circumstance related in the Parliamentary History, vol. 9, page 335, with regard to the King's Prerogative. The case was this. In the year 1734, the Duke of Belton and Lord Cobham had voted against the Excise Bill of Sir Robert Walpole. In consequence of this, they were removed from their positions in the Army. Being Members of the House of Commons, the House took up the question, and a Bill was brought in to prevent such a tiling being done again, the Ministry resisting the Bill. Upon that occasion, Lord Chesterfield said as follows:—There is no power to be taken from the Crown but that power which the Crown ought never to make use of. It is certain that the Crown ought never to take an officer's commission from him, but from some very sufficient reason, and upon full proof of the facts alleged against him; and, therefore, all that is proposed by this Bill is only a method by which the Crown may get such information as to facts alleged as may be depended on. Can this, my Lords, be called a diminution of the power of the Crown? Is it not plainly and directly grounded upon the fundamental maxim of our Constitution, which says that the King of England shall have it in his power to do as much good as he pleases, but shall not have it in his power to do wrong?And Earl Bathurst also said, to the same effect—It (the Bill) would in reality have given the officers no further right to their commission than they have at present; for it is certain that every officer has now a light to his commission as long as he behaves well, and the corps to which he belongs is kept entire. No officer ought or can justly be turned out of his bread as long as he behaves well; and all that was proposed to be done by the Bill was to subject the behaviour of an officer to the 1523 judgment of a Court Martial or a House of Parliament, instead of leaving it subject to the judgment of Ministers.All that showed that more than 100 years ago they were in advance of us in dealing out justice to the officers of the Army; and let it be borne in mind that the question was not one relating to a military, but to a political offence. Of course, we now condemned the conduct of those Ministers very severely, and no man would now get up to support such a proposal as was then put forward; but he (Sir Alexander Gordon) also believed that after-generations would condemn us for removing officers from the Army without giving them an opportunity of presenting a defence. It had been said that Lord Palmerston was in favour of this mode of removing officers; but the words of Lord Palmerston were these—If there were any Prerogative of the Crown indisputable or undisputed, it was that of holding the right of dismissing an officer from the Army without assigning any reason.Those words were of importance, although they appeared to contest the rule of 100 years ago. But he (Sir Alexander Gordon) was not one to contest the right of the Crown to dismiss an officer in the Army in that way—that was, "without assigning any reason. What he objected to was that the Grown should condemn a man unheard, and assign that condemnation as a reason for his removal. What he had to deal with was the introduction of Courts of Inquiry, which the House would see were nothing but a modern innovation. He would point out what was the first Order with regard to them in 1857. It was in the Queen's Regulations, and provided that—With a view to prevent any officer who may have been taken prisoner by his own neglect, or by any other unofficer-like conduct, from obtaining any of the advantages laid down in the Royal Warrant, a Court of Inquiry is as soon as possible to be assembled, by order of the general officer commanding the forces, to investigate the circumstances under which the capture took place. After having sifted the facts as far as may be in its power, the Court is to state its opinion whether his capture is to be attributed to the chances of war to which he was exposed, or whether it occurred from any unofficer-like conduct on his part. The President and members of the Court are to make the following declaration previous to commencing the proceedings.And then followed the declaration, the wording of which was almost the same as an oath— 1524I, A.B., do declare, upon my honour, that I will duly and impartially inquire into and give my opinion as to the circumstances under which Captain C.D. became a prisoner of war, according to the true spirit and meaning of Her Majesty's Order and Regulation on this head, and I further declare upon my honour that I will not upon any account or at any time disclose or discover my own vote or opinion, or that of any particular member of the Court, unless required to do so by competent authority.With all due deference, he was of opinion that the whole of these proceedings were contrary to the law of England; for here was the Crown establishing a Court to try an officer, and perhaps find him guilty of unofficer-like conduct, which would entail upon him, besides, certain disabilities with regard to advantages to which he might be entitled. It was true the president and members were not ordered to take an oath; but they were ordered to make a declaration, which, of course, to an officer and gentleman, would be precisely the same thing; it would make no difference to him whether he had to take an oath or make a declaration. Observe, also, that the members were bound to secrecy. In this manner had Courts of Inquiry crept in, and had been much in use as semiofficial Courts for the purpose of condemning officers of unofficer-like conduct. But strange to say, when this Order was given, the Articles of War provided that the specific offence referred to should be decided upon by court martial; so that they had the Regulations of the Army going directly against the Articles of War. With regard to the Crown having power to dismiss officers without trial, it had been stated by the hon. and learned Gentleman the Member for Oxford (Sir William Harcourt) that such power was exercised in the case of foreign Armies; but he (Sir Alexander Gordon) contended that that was not so. He could not find that an officer in any foreign Army could be dismissed without being subjected to a court martial. The United States had, almost word for word, adopted our Mutiny Act and Articles of War, and retained them to the present day, without making any but trifling changes. The House, he thought, should bear this in mind, and they would see that the old Mutiny Act which they were now asked to set aside was not, after all, so very bad. In July, 1862, the Congress of the United States passed an Act in these words— 1525That the President of the United States be and hereby is authorized and requested to dismiss and discharge from military service, either in the Army, Navy, Marine Corps, or Volunteer Force in the United States Service, any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the Public Service.That was very like the clause the House was now asked to pass. But what did the United States do, three years afterwards? They were so ashamed of this piece of legislation for the Army that they enacted in March, 1865—That in case any officer of the Military or Naval Service who may be hereafter dismissed by authority of the President shall make an application in writing for a trial, setting forth under oath that he has been wrongfully and unjustly dismissed, the President shall, as soon as the necessities of the Public Service may permit, convene a court martial to try such officer on the charges on which he was dismissed. And if such court martial shall not award dismissal or death, as the punishment of such officer, the order of dismissal shall be void. And if the court martial aforesaid shall not be convened for the trial of such officer within six months from the presentation of his application for trial, the sentence of dismissal shall be void.He asked for the officers of the British Army that the same rule should apply to them; and there could be no reason why we should not adopt so salutary and just a regulation. He held in his hand a letter which was sent to the officer whose case had been mentioned by the hon. and gallant Member for Sunderland (Sir Henry Havelock). It was to the effect that the Field Marshal Commanding-in-Chief, having had the proceedings of a Court of Inquiry brought under his notice, had determined as follows:—I have the honour to inform you that His Royal Highness, with the concurrence of the Secretary of State for War, has come to the conclusion that, in view of the facts divulged in the investigation which has taken place, no other course is to be pursued towards—than to remove him from the Service.—will, therefore, be called on to resign his commission, failing which his summary dismissal will be proceeded with.This was an entirely now system which had been introduced during the last few years, and it was most unjust to force an officer to take a step which shut the door against any remedy. In this particular case, however, the officer objected, and he was gazetted out of the Army; but so weak was the case, as I imagine, that after being two years out of the Army, a letter was written to say that if he would send in his resignation 1526 he should have a pension of 2s. a-day for one year. Actuated by that bribe, he sent in his resignation, and The Gazette was altered to the effect that he had resigned instead of having been removed. This officer might have been guilty of the grossest misconduct; indeed, he (Sir Alexander Gordon) knew not of what it consisted; but this he knew—it appeared that there had been committed a great iniquity, and the authorities sought to clear themselves from the suspicion of injustice. In answer to a complaint of the officer—under arrest for 111 days in order that he should be tried by court martial for embezzling public property—who bad written, asking that he might be tried, or might have a copy of the charge which was to be made against him, the reply given, under direction of His Royal Highness the Commander-in-Chief, was to the effectThat the letters which the officer had forwarded to the General Commanding in the district had been duly submitted to His Royal Highness, and their contents had received his most careful consideration; that an investigation into certain matters connected with the station was then being carried on by the orders of His Royal Highness; that until its result was reported to the Army Headquarters, His Royal Highness could not decide finally on the officer's case.And it was added—That as the officer was under arrest at large, His Royal Highness did not consider that he was exposed to any unusual hardship or subjected to any exceptional treatment.He had doubted the possibility of His Royal Highness telling a man who had been under arrest for 111 days, not being allowed to go out of barracks, except by special permission, on the painful charge of having embezzled stores, that there was nothing unusual in the treatment which he had received; and he, therefore, bad obtained the original letter which he held in his hand. A more extraordinary proceeding he had never heard of, and, therefore, not being content to leave such cases to be dealt with by Courts of Inquiry, he asked Parliament to legislate; in the simple and plain way indicated by the terms of the Amendments to the 46th clause of the Bill of which he (Sir Alexander Gordon) had given Notice—namely—Whenever a court of inquiry is assembled to investigate any matter affecting the conduct or character of an officer or soldier, such officer 1527 or soldier shall tie entitled to receive a copy of any opinion which, may be delivered by such court; and, if the officer who convenes the court of inquiry shall prefer to instruct the court to receive evidence only and not to deliver an opinion, the officer or soldier whose conduct or character has been called in question shall be entitled to demand that the officer who convenes the court of inquiry shall himself deliver an opinion upon the matter which has been the subject of investigation, and a copy of such opinion shall be delivered in writing to the officer or soldier concerned.And further, any officer or soldier who, after such investigation, is not fully exonerated from blame or culpability by the opinion of a court of inquiry, or by the officer who convened the court, shall be entitled to demand that he shall be placed upon his trial before a court martial, in order that the matter which has been the subject of investigation by the court of inquiry may be inquired into by a court competent to receive evidence upon oath, and of which the members composing it are themselves be und by the sanctity of an oath, and at any trial by court martial following upon evidence taken at a court of inquiry, the prisoner shall be entitled to have access to the evidence so taken.With regard to the infirmities of temper from which officers suffered, and which had been so much spoken of, he thought the proper course was to deal with them through the general officer in command, and not by means of a Court of Inquiry. It had been his misfortune, having had under his command nearly half of the Infantry, sometimes to be obliged to report officers as unfit for command; and in those cases he had made it a rule to tell the officer in question that he was unfit for promotion. A Report was then forwarded to the Horse Guards, and the Commander-in-Chief disposed of the case in the way in which he thought proper. In conclusion, not being satisfied with the statement of the right hon. and gallant Gentleman the Secretary of State for War, he should certainly vote with the hon. and gallant Member for Sunderland.
§ COLONEL ALEXANDER
said, he considered the question brought forward by the hon. and gallant Member for Sunderland (Sir Henry Havelock) to be one of great importance, and he was glad that he did not desire to deprive the Crown of the right, which it legitimately and advantageously exercised, in the occasional summary removal of officers of the Army. It was true that that power was most arbitrarily exercised in the last century; but such an abuse could not possibly occur now. A case of the summary removal of an officer was now very rare, and it could 1528 only happen under the direct responsibility of the Commander-in-Chief. There was an instance of an officer who was so removed for cheating at cards. The facts were so notorious as to render a Court of Inquiry or a court martial superfluous; and a notice was inserted in The Gazette that the Queen had no further occasion for the services of an officer who brought disrepute on the Service. The hon. and gallant Member for Sunderland, like himself (Colonel Alexander), did not object to a Court of Inquiry per se, but only to such a Court being diverted from its legitimate function of investigation, and being required to perform quasi-judicial duties for which it was manifestly unfitted. Its members were few in number, and were not be und by oath; they did not even take a declaration of impartiality or of secrecy as to the vote of any particular member; no oath was ever administered to the witnesses; and it had lately been ruled by the Court of Queen's Bench that, even assuming that there was malice on the part of a witness, he was protected from the consequence of any statement he might have made. The evidence was also often entirely ex parte. A Court of Inquiry, therefore, should precede and not supplant or usurp the function of a court martial. The definition given by the eminent statesman, Mr. Windham, of a Court of Inquiry was that the members were sitting as advisers, not as judges, and that their duties were analogous to those of a Grand Jury, who had simply to decide whether the matter ought to be submitted to Judges or not. The late Duke of Wellington, when Sir Arthur Wellesley and a Member of that House, in speaking of such a Court, hoped that would be the last Court of the kind that would ever assemble, as, without blaming any of its members, it was not a Court before which any officer would desire to be tried. That testimony, coming from so high an authority, ought to be laid seriously to heart. In conclusion, he trusted that in future Courts of Inquiry would be restricted to their legitimate function of informing the Commander-in-Chief whether a primâ facie case had or had not been made for arraigning the accused before a general court martial—the only tribunal possessing the confidence of officers of the Army.
§ MAJOR O'BEIRNE
insisted on the necessity of reform in regard to these 1529 Courts of Inquiry, which were often most unjust and unsatisfactory in their formation. In Colonel Carter's case, the President of the Court of Inquiry was the brother-in-law of his enemy, Colonel Jerome, and another member of the Court was a personal friend of that officer. Anything more unfair could not be imagined. Reference had been made by the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) to what took place in the early part of the 18th century, when Sir Robert Walpole was Prime Minister, and when some officers were dismissed the Service for giving a vote adverse to the Government; and it had been said that there was no mixing themselves up with politics on the part of the military authorities now-a-days. There could not be a greater mistake than to believe any such thing. He (Major O'Beirne) held in his band the volume of Hansard containing a report of the speech of the then Secretary of State for War, now Viscount Cranbrook, to the House of Commons in 1870, wherein the noble Viscount made the grossest possible misrepresentations as to what happened at the Curragh in regard to himself (Major O'Beirne). He would, however, admit that the noble Viscount was not at the time conscious of the misrepresentation. The noble Viscount, in fact, bad telegraphed to the General, and the General had the audacity to say that he (Major O'Beirne) did not take the trouble to get leave. What had happened, however, was this—that, first of all, his politics were denounced as discreditable. When he asked for leave they granted him 48 hours only; whereas the general practice, when an officer had urgent business, was to give him eight or ten days extra, conditional on his being liable to be recalled by the General. They played a game of shuttlecock and battledore with him, whilst every facility was given to his Conservative opponents, and but for the exertions of his hon. and gallant Friend the Member for Galway (Major Nolan), and others, he would never have got away to the Election at all.
§ MR. SPEAKER
I am bound to say that I fail to see the connection between the observations of the hon. and gallant Member and the Amendment before the House.
§ MRJOR O'BEIRNE
said, he was going to prove that the military authorities 1530 in the present day did take a very active part in politics; and he had an Amendment on the Paper, in which he stated—It is neither expedient nor desirable that Officers on half-pay, or on retired full-pay, or in receipt of pension, should be subject to the provisions of the Army Discipline and Regulation Bill, whilst the active interference of the Military authorities in polities is regarded either with indifference or approval by the Commander in Chief of the Forces.He was going to show, from personal experience, that they did interfere.
§ SIR WILLIAM FRASER
I rise to Order. Surely, Sir, the hon. and gallant Gentleman is not in Order in addressing the House now on his Amendment, which stands subsequent to the one we are discussing?
§ MRJOR O'BEIRNE
said, he was speaking on it now to save time, as he was anxious that they should get into Committee. Alter the difficulty he had had in getting away to the Leitrim Election, the command of a military brigade depot became vacant, and the War Office passed over 34 colonels of Infantry, who had retired in the years 1874–77, in order to give the command to a Cavalry officer, on political grounds. He admitted that that officer was a very painstaking and efficient man—having served under him, he knew that very well—but still there was the fact that the authorities passed over 34 Infantry colonels to give him that post, on account of his political services in having thrown every possible obstacle in his (Major O'Beirne's) way at the Leitrim Election. Such facts as these ought to open the eyes of the House of Commons, and induce them to hesitate before placing officers on half-pay under the jurisdiction of these Courts of Inquiry. He could foresee very plainly that they might be used for political purposes. When the military authorities thought a man's politics objectionable, they might institute a Court of Inquiry about him on some vague charge of "conduct unbecoming an officer and a gentleman." He knew the authorities thought his own politics objectionable; but what must they think of the hon. Member for Dundee's? If an hon. Member who was on half-pay or retired full-pay were placed under this Bill, he might, just when wishing to start for a contested Election, find a Court of Inquiry ordered respecting him, and thus be put to great injustice. In order to provide a remedy 1531 for such, a proceeding, he should vote for the Motion of the hon. and gallant Baronet the Member for Sunderland.
§ MR. HERSCHELL
said, that there was a great deal of agreement in respect to most of the points brought forward for discussion, and, therefore, a decision might very easily be now arrived at, considering the time that had been spent over the subject. No one proposed to take away from the Crown the Prerogative of dismissing an officer from the Service without assigning a reason. It had not been suggested that Courts of Inquiry, if kept within their due limits and exercising certain functions, might not be a useful machinery. Everybody agreed that they might be, and were, grievously abused for the trial of offences; but harm was done occasionally by all Courts, and the abuse would be prevented, if it could be declared that Courts of Inquiry should not be used for inquiring into offences triable by court martial; and if such a regulation were promised, the Amendment might well be withdrawn.
MR. ASSHETON CROSS
said, he entirely agreed with the suggestion made by the hon. and learned Member for Durham (Mr. Herschell), which had put the matter into a nutshell. It was admitted that the Prerogative of the Crown must be maintained for the benefit of the Army; that Courts of Inquiry were of assistance to commanding officers; and that they might be and had been abused; and the only question was, whether Courts of Inquiry could be restricted to their legitimate functions and not substituted for courts martial. The hon. and gallant Baronet (Sir Alexander Gordon) wished to do away with those Courts altogether; but he did not think that was the feeling of the House. He thought the House would be satisfied with the assurance of his right hon. and gallant Friend the Secretary of State for War, as given by himself (Mr. Cross), that he would take care to lay down, in such form as it could not be evaded, a rule that for every offence which could be tried by courts martial Courts of Inquiry should not be held. There would be no doubt upon that point, and that being so, he hoped that they would be allowed to go into Committee.
§ SIR ARTHUR HAYTER
said, that Courts of Inquiry were formed to consider other questions besides military offences, and what they wanted to secure 1532 was that those Courts should be limited to collecting information, and should not be allowed to pronounce judicial decisions and sentences.
§ GENERAL SHUTE
maintained that Courts of Inquiry were necessary and valuable when rightly used. They should occupy a position very much like that of a Grand Jury on Assize, and precede a general court martial. There were many cases in which they would save an innocent man from the exposure and inconvenience of a court martial. All Boards might be abused; but he was agreeably surprised to find how few were the cases of abuse which the hon. and gallant Baronet the Member for Sunderland (Sir Henry Havelock) was able to bring forward. He fully admitted the abuse in the case of Colonel Dawkins. But that was a special case, which could not have occurred in the Line. He had had considerable experience of Courts of Inquiry, and believed that they were of great service to a General, and occasionally to the colonel of a regiment, in collecting evidence which could not otherwise be obtained. If they were abolished, a General would be put to much inconvenience, as a Court of Inquiry could go into a case much more completely than a court martial. It was much fairer to an accused man that a Court of Inquiry should be held, than that his case should be decided solely by the Commander-in-Chief. The objection that a man was liable to be tried by interested judges might be urged with equal force against courts martial. He had himself known cases in which Courts of Inquiry had sifted evidence which a court martial could never have investigated thoroughly. In reality, he believed they were all pretty nearly of one mind. He hoped, however, that the Prerogative of the Crown would not be hampered, and that the Commander-in-Chief would not lose the power of having a full inquiry made in cases which it was impossible for him to investigate personally.
§ GENERAL SIR GEORGE BALFOUR
regretted that so much time had been spent upon this question, when it might have been closed at once by a prompt recognition on the part of the right hon. and gallant Gentleman the Secretary of State for War of the principle advocated by the hon. and gallant Baronet the Member for Sunderland (Sir Henry Havelock). He admitted that Courts 1533 of Inquiry were often of great use; but when abused they were the cause of very great injustice. These courts were liable to the abuse of partiality by the way they were constituted. There ought to be a regulation making it impossible for these Courts to be composed of officers inimical to the party brought before them. There had been but few cases of dismissal by the exercise of the Prerogative under the inquiries made by such Courts, yet there had been more complaints from the few officers dismissed than from the very much larger number of officers dismissed by courts martial. The illustrious Duke of Wellington never used a Court of Inquiry, on account of the treatment he himself received at the hands of one of those kinds of Courts, which might be said to have been assembled by the Commander-in-Chief and his Staff when before Seringapatam on the occasion of the night attack in which the Duke failed. He was sorry that the Secretary of State for War had not promised them such details of precaution as would prevent this abuse from taking place. In his opinion, the Crown had been lowered by the practice of arbitrary power in the exercise of its Prerogative under these inquiries as well as from the secret reports made on officers.
§ SIR HENRY HAVELOCK
said, that on the understanding that the right hon. and gallant Gentleman the Secretary of State for War would introduce a provision, in the sense stated by the Home Secretary, that Courts of Inquiry should not in future be used for the investigation of military offences which ought properly to be tried by courts martial, he would withdraw his Resolution.
§ Amendment, by leave, withdrawn.
§ MAJOR NOLAN
, who had the following Resolution on the Paper:—That it be an Instruction to the Committee, that they have power to make provision therein to increase the remuneration for billeting and carriage hiring,said, he was aware that by the Forms of of the House he was not able to move his Resolution. There was this important difference between the present Mutiny Act and former Acts—that formerly the Mutiny Act was passed annually; but this was a perpetual Act, and would merely be put in shape year by year. The question of billeting was 1534 therefore, of more importance now than it had been. A good deal of dissatisfaction had been expressed by licensed victuallers with the scale of charges for billeting. In some parts of the country, hotel-keepers and publicans fancied that the House of Commons was to blame for the present billeting rates; but ordinary Members had no control over those rates. On one occasion, he proposed a slight increase of one of the charges paid to an innkeeper, and the then Secretary of State for War called the attention of the Chairman of the Committee to the fact that he (Major Nolan) was moving to increase the charges on the State, which, as a private Member, he had no power to do. A private Member could move a reduction, but only the Government could move an increase. The Government, therefore, could give power to the Committee to discuss the charges, and he trusted that, as a matter of fairness, they would do so. If hon. Members were not allowed to discuss the matter, the Government alone would be responsible for the present rates. According to those rates, an innkeeper received 2½d. per night for every soldier quartered on him, and that was quite an insufficient payment. It might be said that it was a tax which a licensed victualler incurred when he took out his licence; but it was an irregular contribution, and was unfair because it was irregular. Licensed victuallers who did not live on a marching route had no soldiers, while those who lived on the routes of march were heavily taxed. Then a licensed victualler received 1s. 1½d. for furnishing a soldier with a hot meal, which was to consist of a pound and a-quarter of meat before cooking; a pound of potatoes, with a pound of bread, and two pints of small beer. The meat alone would cost about 1s., and for want of small beer stronger beer was often supplied. The licensed victuallers would have to spend 1s. 4d., for which he would receive 1s. 1½d., and then nothing was allowed for cooking and attendance. Where no hot meal was furnished, 4d. a-day was allowed, and that, again, was insufficient; 1s. 9d. a-day was allowed for forage, and he believed the actual cost was 1s. 8d. at present rates; but an innkeeper often had to buy forage at retail rates and to hire stables. Besides, no allowance was made for the use of the stall. There was in the Bill, for the first time, an 1535 allowance, which he was glad to see, of 2s. a-night for an officer's bed, as it was an anomaly to which he had himself called attention on a previous occasion. He maintained that the licensed victualler was not sufficiently considered in the scale of charges. When soldiers went into a fresh district, licensed victuallers were glad to see them; but when the novelty were off, it was a question of pounds, shillings, and pence, and the result was that they became anything but welcome visitors.
§ SIR DAVID WEDDERBURN
also thought that a good deal of hardship was inflicted upon licensed victuallers by the present system of billeting. The sum mentioned for forage would suffice as long as hay and straw remained at their present low prices; but it was to be remembered that those articles were just now exceptionally cheap, and that their price was certain to rise before long. In Haddington, one of the be roughs he represented, the grievance was much felt, because, lying on the direct road between Edinburgh, where cavalry were stationed, and York, its 11 innkeepers and six livery stable-keepers had, at tolerably frequent intervals, to provide accommodation for some 80 men and horses. They had to do this sometimes only once in two or three years; but sometimes they had to do it half-a-dozen times in a year for two or three years together. It was precisely the uncertainty of this occurrence which constituted the grievance, because the burden could not be calculated beforehand. Innkeepers frequently had not stables sufficient to accommodate the number of cavalry billeted on them, and they were obliged to hire stables for them at something like 3s. 6d. per horse. As the burden was so uncertain, and fell on a limited class in a few towns, he hoped the right hon. and gallant Gentleman the Secretary of State for War would give an opportunity of bringing this under notice in Committee.
§ MR. BRISTOWE
fully concurred with the opinions that had already been expressed, and would be glad to co-operate in getting rid of the hardship complained of. As the Committee could not increase the amounts mentioned in the Schedule, the Secretary of State ought to be able to justify his Estimates.
§ COLONEL STANLEY
said, that he was informed by the most competent autho- 1536 rities that at present there were no grounds on which an increase could be recommended in the cases referred to by the hon. and gallant Member for Galway (Major Nolan). Lord Cardwell had carefully considered the subject in 1873, and since that time the allowances had been augmented, the increase being based on the proportion which the billeting allowance be re to the usual contract rates, and if the proportion held good then it would hold good now, since the comparison was in favour of the present time as against 1873. The loss to the licensed victuallers, if loss there was, was certainly not greater now than in 1873, with one exception. He had received one deputation from the Wine and Beer Trade Protection Society, composed apparently of men of great ability and intelligence, who had waited upon him, and remonstrated in general terms on the prices scheduled for billeting. He found, however, that they rested their case not so much on their own knowledge of prices, as on the fact of the general increase of the cost of food. When he asked them for further particulars, they had produced a number of statistics, which, however, they declined to guarantee; and though he had requested them to collect and transmit to him additional and authentic information, they had not done so, and had not again communicated with him. The best authorities seemed to be against an increase of price, and it was certainly the fact that the contract rates were now more favourable to the innkeeper than they were in 1873. He had not thought it expedient to ask for a general power in the matter, and, therefore, his only alternative was to include the present figures in the Schedule of the Bill, and, until further reason was shown, he was not prepared to depart from them, as he considered the facts of the case justified their retention.
§ MR. WHITWELL
thought that some discretion as to the amount paid should be left to the War Office authorities, a maximum sum being all that was enacted in the Statute.
§ GENERAL SIR GEORGE BALFOUR
said, he also was of opinion that a discretion should, in some way, be given to the Secretary of State for War, and would suggest that powers should be given in the present Bill to the Secretary of State, who should be empowered to 1537 annually lay on the Table a memorandum of the prices at which it was proposed to pay for the various articles necessary, subject to the approval of Parliament.
COLONEL LOYD LINDSAY
thought the suggestion of the hon. and gallant Member might meet the exigencies of the case, though there was an opportunity, when the annual Bill came before the House, of re-adjusting the prices, if it were considered that the scale required revision.
§ MR. RAIKES
said, that what was sought was more elasticity in the prices, which at present were wholly inadequate. He hoped the suggestion made by the hon. and gallant Member opposite (Sir George Balfour) would be ultimately adopted.
§ MR. MACDONALD
complained that by billeting a tax of a serious kind was most unjustly placed upon a limited class of the people. Instances had been brought under his notice where licensed victuallers had sustained a loss of 1s. 9d. per head each night on the persons billeted on them. He thought that this should be borne by the Government, and not by the individual.
§ MR. A. H. BROWN
thought that the system of placing Volunteers under military law when they were with the Army would hardly work well.
§ Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.
§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 1 (Short title of Act).
replied, that a Preamble usually consisted of a recital beginning with the word "Whereas." The words, "Be it enacted, &c," formed no part of the provisions of the Bill, and were merely part of its machinery. This measure had no Preamble.
§ SIR ALEXANDER GORDON
wished to move an alteration in the title. He thought "Army Discipline Bill" a much 1538 better title than "Army Discipline and Regulation Bill." Originally, there were the Army Discipline Bill and the Army Regulation Bill. Then the Government embodied the two Bills in one, and he supposed they, at the same time, amalgamated the titles. For his part, he thought "Army Discipline Bill" would be a much better title, for even the suggested title did not cover the full description; and if they were to be correct they should add the word "military." He would move, as an Amendment, in page 1, line 6, to omit the words "and Regulation."
§ COLONEL STANLEY
said, the hon. and gallant Gentleman would see that the title of the Bill was in conformity with the general subject. It would be impossible to contend that the words "Army Discipline" would cover all the arrangements as to enlistment, billeting, and other general provisions contained in the 3rd and 4th parts of the Bill. It was quite true that the Army Discipline Bill was before the Committee last year; but that was owing to circumstances over which he had no control, and no one else had any control. On consideration, he did not think that all the subjects essential in this Bill could be comprised under the word "Discipline," and, therefore, he added the words "and Regulation."
§ MAJOR NOLAN
said, he thought the 1st clause, as there was no Preamble, ought to contain the most important words which had been in the old Act for more than 100 years. The old Mutiny Act began—Whereas the raising or keeping of a standing Army within the United Kingdom of Great Britain and Ireland in time of peace, unless it be with the consent of Parliament, is against the law.And then it went on to say that annual powers were given to the Crown to have a standing Army. These words were omitted from the present Bill, and he considered they contained a most important Constitutional principle, which should not be lost sight of. They were now recognizing a standing Army to an extent never before dreamed of. The old oath, too, was altered. Then an officer on court martial was sworn to duly administer justice "according to the Act now in force," and that sent him straight to the Mutiny Act, with the words he had quoted. But this Bill 1539 spoke of the Act of 1879. If, then, ambitious Ministers should ever wish to carry on the Army without the consent of Parliament, their acts would be condemned by the first words of the old Act, if it were still in force; but that would not be the case under the new Act.
MR. STAVELEY HILL
pointed out that these words would still remain in the annual Act, passed every year. The present Bill merely embodied certain things which were in their nature permanent, and the annual Acts would still be passed with the very recital and the Preamble which the hon. and gallant Gentleman (Major Nolan) wished to insert.
§ Amendment negatived.
§ SIR ALEXANDER GORDON
moved, as an Amendment, in page 1, line 6, to leave out "1879," for the purpose of asking the right hon. and gallant Gentleman the Secretary of State for War to state how he proposed to have this Act quoted? In the Bill before the Committee last year, there was this clause—Where any section or sub-section of this Act is amended by the substitution of another section or sub-section, it shall be the duty of Her Majesty's printers, in all copies of the Act issued after the expiration of the current year, to substitute the amended section or sub-section for the section or sections thereby so amended.That appeared to him a most extraordinary mode of procedure. He thought they would print the original Act of this year as it was passed, as the Act of 1879, and then, if the Act were amended next year, that Act would stand upon their Records as the Act of 1880. But, according to this proposal, the printer would insert in the Act of 1879 the Amendments of 1880, and this would go on for several years, resulting in very great complications, officers not knowing which Act they were dealing with. In this Bill, however, that proposal was altogether omitted; but nothing was put in its place. Sir Henry Thring told them, in the Select Committee, that it was inevitable that this Act would require amendment, and, therefore, they would certainly require a series of Acts on the subject. Sir Henry Thring, as they would see by his evidence, spoke of the impossibility of at once passing a Consolidated Act. He said that this Act would require amendment for several years, and he instanced the Merchant Shipping Act, which had 1540 been amended 19 times. If they had the same experience in regard to this Act, which was most probable, they would therefore have 19 amending Acts. In the prospect of this, he should like to know how the Secretary of State for War proposed to introduce them into the measure they were now considering, and to quote them?
MR. ASSHETON CROSS
said, the Act must be year-marked by some name or other. This would be known as "The Army Discipline and Regulation Act, 1879." In future annual Acts it would be alluded to by that name until it was amended, when it would be "The Army Discipline and Regulation Act, 1890," or whatever year it might be.
§ MRJOR NOLAN
said, the first three clauses all referred to the name of the Act. Now, they were told, there was to be a Continuance Act; but be body knew anything about it, except the Secretary of State for War and the Judge Advocate General. He therefore thought it would be far better to postpone these clauses until they had seen the Act, for they could not without it decide on the name of this Act.
§ COLONEL STANLEY
did not think there was any necessity for postponing these clauses, as he had stated the substance of the annual Act, and there was a copy of it in the House now.
§ SIR WILLIAM HARCOURT
said, the hon. and gallant Gentleman (Major Nolan) would find the annual Act at page 101 of the Report of the Committee on this subject; and he would find there, also, that the Constitutional recitals on which he insisted, and very properly insisted, were all inserted. He (Sir William Harcourt) should think the most convenient mode of introducing any Amendment would be to move the Amendment on the annual Act, instead of having a separate Bill to amend that Act, whenever the annual Bill was brought in. Anybody, of course, might propose any Amendment of this Act when the annual Act was brought forward. In that way, the Committee thought that Parliament could maintain its control over the permanent Code. Whenever the annual Bill was brought in, to give effect to the permanent Code, Parliament might refuse to pass any part that it disliked; and if there was any particular part that was thought to require amendment, that might be obtained by 1541 making an addition to the annual Bill. Of course, the next annual Bill would include that Amendment, and after that had gone on for some time and the Act was beginning to become cumbrous, there would be another Consolidation Act.
§ MR. E. JENKINS
thought there was some force in the objection of the hon. and gallant Gentleman (Major Nolan). He remembered that the Committee, on the drawing of the Statutes, pointed out how much better it would be if the amended clauses or sections were substituted for the old ones, these being struck out of the Act. If this were done, officers of the Army, who were in the habit of looking to certain parts of the Act for certain things, would be always sure, whatever now regulations were introduced, that they would find them in that particular spot. He did not think there would be any practical difficulty in doing that, and it would really be worth while trying as an experiment in legislation.
§ SIR JOSEPH M'KENNA
did not know what would become of their legislation, if they were to have certain words expunged from their Statutes and others substituted.
§ MR. E. JENKINS
explained that he had been misunderstood. He did not propose that anybody should expunge words; he only wished to pass Acts, containing the new clauses, making it "that so-and-so be substituted and be printed" under such an Act.
§ MAJOR NOLAN
thought it most undesirable that they should be discussing a Continuance Act, which the hon. and learned Member for Oxford (Sir William Harcourt) might have seen, but which he had not seen.
MR. ASSHETON CROSS
pointed out that the Act was in the Report, and that a Copy of it was on the Table.
§ MAJOR NOLAN
replied that he had had no opportunity of studying it, and the great majority of hon. Members know nothing of it. He knew, of course, that hon. Gentlemen sitting behind Ministers would take anything on the strength of the statements of Ministers. ["No, no!"] Well, at any rate, they did very often. But Members of the Opposition were entitled to look at this Bill before they were called upon to legislate on the subject. There was one point which he would like to have 1542 cleared up by the Judge Advocate General, or by some other Minister. In ordinary Continuance Acts they were not allowed to insert any new clauses; and he especially remembered in the case of the Coercion Act that he and other hon. Members tried to get a new clause inserted there, and that they were not allowed to do it. Now they were told that this was an exceptional case, and that they could do it. He had no doubt that statement was correct, because the hon. and learned Gentleman the Member for Oxford (Sir William Harcourt) was always correct when he spoke on business matters; but still it would be satisfactory to have an assurance from Ministers.
§ SIR ALEXANDER GORDON
explained that he was not thinking of the control of Parliament, but of the officers of the Army, who would have to use the Act. Their object was that they should have one document to deal with, while, by the proposition of the right hon. and gallant Gentleman the Secretary of State for War, they would be obliged to have in their possession, not only this Act, but every Act passed in every year subsequently.
§ MR. E. JENKINS
said, he had considerable doubt whether the opinion of the Home Secretary was correct, that new clauses modifying or amending this Act could be introduced into the annual Bill. He believed it was impossible for him to ask the opinion of the Chairman on the subject, as the Bill was not before him; but, as he read the Bill, the object of the Continuance Act would simply be to continue the Army Discipline Bill and nothing else. He should not venture to set his opinion against that of the Home Secretary; but it might be well to introduce a clause reserving the right of amending and refusing the Act.
MR. ASSHETON CROSS
would never have ventured to give such an opinion, had he not previously received the most careful and explicit explanations from the authority whom they all consulted on these subjects.
§ SIR WILLIAM HARCOURT
called attention to the title of the Bill in the draft, "For bringing into force and continuing the Army Discipline and Regulation Act so and so." If they passed 1543 an Act for that purpose, they might pass it subject to any conditions they pleased, and those conditions would be part of the measure. This was something more than an ordinary Continuance Act; and in such a measure, when Parliament brought into force any particular Act, it might also bring into force such Amendments as it chose.
§ MR. BRISTOWE
was of opinion that the matter had been misunderstood, because it had not been clearly explained. This was not a Continuance Act at all, but a Code to be introduced year by year by an annual Act for that purpose; and, therefore, in no sense would the annual measure be a Continuance Act. Being such a Code, any Amendments could be introduced each year; and if, after a number of years, when many Amendments had been introduced, the Act became cumbrous, then a new one could be introduced.
§ Amendment negatived.
§ Motion made, and Question proposed, "That the Clause stand part of the Bill."
§ SIR ALEXANDER GORDON
moved, as an Amendment, that it be omitted, in order to substitute a new one.
The hon. and gallant Member is, of course, within his right in opposing the Motion that Clause 1 stand part of the Bill; but it is not open to him to propose to substitute any other clause at this stage of the Committee. It would, of course, be open for him to bring in a new clause, provided it were in harmony with the object of the Bill, when the new clauses come to be considered.
§ SIR ALEXANDER GORDON
said, he proposed to omit the clause in order that, at the proper time, he might bring up a new clause containing the general principles which guided the House in legislating on this subject. The present Bill began without setting out those general principles at all. It was not open for him to discuss the new clause he meant to bring up on that occasion; but he might say he hoped that this Bill would not be hurried through the House, for it was a most important measure, and affected, not only the whole of the Army, but very many of the civilians throughout the country. The new clause he would propose subsequently would be— 1544During the time this Act shall continue in force no person subject to military law shall be liable to be held guilty of any misconduct until he shall have been offered the opportunity of explaining or defending the act or acts which constitutes his alleged misconduct, in the manner hereinafter directed.
§ Question put.
§ The Committee divided:—Ayes 101; Noes 26: Majority 75.—(Div. List, No. 77.)
§ Clause 2 (Mode of bringing Act into force).
§ MR. E. JENKINS
moved, as an Amendment, in page 1, line 8, to leave out the word "same," in order to insert the words "an annual." His object was to have it definitely stated in the Bill that it was to be annually renewed. He hoped the Government would have no objection to the Amendment.
MR. O'CONNOR POWER
said, notwithstanding what was stated a short time ago in reference to the power they would have of altering the clauses of this Act, great doubt existed amongst many hon. Members on the subject, and they were not sure that if the clauses were passed they would have it in their power to amend them. Everyone seemed to be in favour of retaining control over the provisions of the Bill, and, therefore, they were anxious to make sure that the House of Commons relinquished no power of altering the Mutiny Act in agreeing to this Bill. He did not see how the Government could possibly object to the Amendment which had been proposed.
§ COLONEL STANLEY
did not see that there was any material objection to the Amendment, and he would, therefore, agree to its adoption.
§ Amendment agreed to; words substituted accordingly.
§ SIE WILLIAM HARCOURT
said, he had an Amendment to move, in order to make one point clearer than it was at present. He proposed, in page 1, line 9, after the word "time," to insert the words "and subject to such provisions, if any." That would leave no doubt at all about the clause.
§ MR. HOPWOOD
did not see that the words "if any" were necessary. There 1545 could not be an Act of Parliament without some provisions, and it was, therefore, a little redundant to speak of "such provisions, if any."
§ Words, by leave, withdrawn; Amendment, as amended, agreed to.
§ Clause, as amended, agreed to, and ordered to stand part of the Bill.
§ Clause 3 (Division of Act).
§ MR. J. BROWN
moved, as an Amendment, in page 1, line 14, after "Part I.," to insert "definitions and." He did not think the Bill could be made too plain and simple. They all knew that when they studied Euclid they had the definitions first, and they would understand this Bill much better if they had the definitions first. The Committee must remember that the Bill was not intended for lawyers; but it would be administered by soldiers and persons who had no legal knowledge. Now, there were several definitions which ought to be included, but which he did not find in the Bill. For instance, if a man struck an officer in the execution of his office, he was subject to very serious penalties; but there was no definition of what "in the execution of his office" meant. The word "misbehave" also, ought to be included in the definitions. Then there was the vexed term, "felonious and fraudulent." He had been looking over the Criminal Code Bill for a definition of "felonious and fraudulent," and he could not find one.
§ COLONEL MURE
rose to Order. He considered the hon. Member for Horsham (Mr. Brown) was taking a rather peculiar course. The definitions were set forth at page 103, and they were at present on page 1 of the Bill, and yet a discussion was being raised on what did not come until they arrived at page 103.
The hon. Member for Horsham (Mr. Brown) is proposing to insert in this clause the words "definitions and," and I understand him to illustrate his position by making a short reference to the definitions of the Bill. He would not be in Order to discuss those definitions at length; 1546 but he is in Order in briefly referring to them.
§ MR. J. BROWN
said, some of the definitions were of a most serious character, and he should like them to come first in the Bill. He did not desire to oppose the progress of the measure; but he called attention to this matter in the interest of the Army itself.
§ COLONEL STANLEY
Perhaps the time of the Committee will be saved, as this is a matter of drafting, if I agree to postpone the clause.
§ Amendment, by leave, withdrawn.
§ GENERAL SIR GEORGE BALFOUR
desired to draw attention to the number of useless words which had been employed in the drawing up of this Bill. Their object ought to be to simplify the military law in respect to this verbosity as much as possible. The Statute Law Revision Committee recommended that all words which were mere repetitions should be passed by means of one enacting clause. For instance, Clause 10 had some 65 words in it, and there were no less than 12 or 14 other clauses which contained exactly the same words, all of which were useless verbiage. Those clauses were the 11th, 15th, 21st, 22nd, 26th, 30th, 31st, 35th, 36th, 37th, 38th, 39th, and 40th; and under these there were about 35 offences all liable to be punished in the like manner, and all having a common heading. When he looked at Clause 4 he found there were no less than four other clauses of a similar character—namely, Clauses 7, 14, the first part of Clause 8, and the first part of Clause 9. These clauses dealt with 15 offences which might all be brought into one clause. Thent he second part of Clause 8 was exactly the same as the second part of Clause 9. There were several clauses like Clause 18. They dealt with eight offences, all of which might be included in one clause. He earnestly hoped the Secretary of State for War would not hesitate to amend the Bill in these respects. In any measure connected with the Army, nothing could be better for the discipline and convenience of the Service than to have all these laws and offences scattered through as few clauses as possible.
§ COLONEL STANLEY
I think the Committee will hardly expect me to enter into any detailed reply to the arguments of the hon. and gallant Gentleman. I cannot accept what he suggests, because, when I had the honour of introducing this Bill, I stated that one of the great principles upon which it had been drafted was that, instead of mixing up the law of promiscuous offences, merely because the same punishment might be applied to them, it had been thought better, acting on the advice of all those whose attention had been directed to the subject, to define the offences separately, and then to specify their particular punishments. To do what the hon. and gallant Member proposes would, no doubt, save words; but it would be at the expense of that clearness which is the very object of the Bill.
§ Clause postponed.