HC Deb 01 May 1879 vol 245 cc1547-62

Offences in respect of Military Service.

Clause 4 (Offences in relation to the enemy punishable with death).

MR. J. BROWN

rose to move the omission of sub-section 7.

SIR ALEXANDER GORDON

said, he had an Amendment before that.

THE CHAIRMAN

The Amendment of the hon. and gallant General is one which refers to the machinery of the Act, and is not an Amendment to the subject-matter of the Bill. Therefore, it cannot be put.

MR. E. JENKINS

submitted it would be competent for the hon. and gallant Gentleman to move to postpone Clauses 4 to 165, inclusive.

THE CHAIRMAN

The hon. and gallant Member would not be in Order in moving to postpone clauses wholesale, though he would clearly be in Order in moving to postpone one clause at a time.

SIR ALEXANDER GORDON

hoped he would hereafter have an opportunity of discussing his Amendment, as it was an important matter, being to insert "part 5" as "part 1."

MR. J. BROWN

then proposed the omission of sub-section 7 from the clause, on the ground that it was so vague in its meaning, and that subsection 6 provided for it.

Amendment proposed, In page 2, line 17, to leave out from the word "thereof," to the word "mentioned," inline 19, inclusive.—(Mr. James Brown.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

COLONEL STANLEY

said, it had been thought well to insert this sub-section, after careful consideration, because he could well conceive there were many offences which might occur in face of the enemy which would be of a serious character, and which were not provided for in the previous sub-section.

MRJOR NOLAN

would vote for the Amendment to omit this sub-section, though if the Committee decided to retain it, he would suggest, after the words "misbehave before the enemy," the omission of "in manner in this Act not specifically mentioned." He considered those words objectionable. The terms of the proposed new Act were exactly the same as those of what was familiarly called "the Devil's clause" of the existing Act, and that clause had been condemned by all military writers of authority.

SIR WILLIAM HARCOURT

thought, after all, that it must be remembered that what this Bill merely professed to do was to consolidate the existing laws. It was meant to re-enact in a clearer form the existing laws, and they would find in Section 15 of the Mutiny Act, "or shall misbehave himself before the enemy." Then they would see that was repeated in the 52nd Article, "shall misbehave before the enemy;" therefore, he was of opinion that it would not be right to omit an offence which had been so long retained in the category of offences under the Mutiny Act; therefore, they should adhere to the wording of the existing law.

MR. MARTEN

pointed out that the clause also contained these words, "inducing other persons to misbehave themselves before the enemy."

MRJOR NOLAN

objected to the words "in manner in this Act not specifically mentioned." He strongly protested against these words, and he certainly thought they ought to be omitted.

MR. O'CONNOR POWER

was afraid the hon. and learned Member for Oxford (Sir William Harcourt) did not remember the response made by the Govern- ment last year to those who objected to the Mutiny Bill. It was then stated that the object of the present Bill was to "consolidate." He remembered well that it was stated, when opposition was made to the Mutiny Act, that a Bill would be prepared to consolidate, revise, and reform the law. Of course, that might have escaped the notice of the hon. and learned Member. He thought the objection which had been raised to this sub-section was very well founded, because of the great penalty that was attached. First of all, they had the offences described in ambiguous language; and if those who were in charge of the Bill could see their way to leave out this ambiguous description of the offences, he did not think the usefulness of this measure would be at all impaired. The hon. and gallant Member for Renfrewshire (Colonel Mure) said there was another Devil's clause; but one Devil seemed to him to be enough to contend with at a time.

MR. BULWER

said, he thought the proposed Amendment of the hon. and gallant Member for Galway (Major Nolan) might very well be accepted. The words proposed to be left out would be better out of the clause. He did not think the Bill would be less stringent as applied to men who misbehaved in the presence of the enemy, if the words complained of were left out.

MR. E. JENKINS

said, the hon. and learned Member for Oxford (Sir William Harcourt) seemed to think that the Committee had no right to criticize the proceedings of any Committee of which he was Chairman.

SIR WILLIAM HARCOURT

begged pardon. He did not think he had said or suggested anything of the kind.

MR. E. JENKINS

begged the hon. and learned Gentleman's pardon. He hoped that this Bill would be considerably modified before the Committee on the Bill closed.

MAJOR O'BEIRNE

could not see that the Bill made any improvement. It seemed to him that it increased the confusion which previously existed.

GENERAL SHUTE

could hardly conceive what clause was necessary if this one were not, which provided for the punishment of those who misbehaved in the face of the enemy. Nothing could be more necessary for the discipline of the Army in the field than this clause.

MR. HOPWOOD

said, he was not a General in the Service; but he objected to the word misbehave. It was too wide altogether. It would go through every variety of offence, from the mildest to the most serious by which a man could offend his commanding officer. He thought it was time to get rid of such a clause as this, and he did not believe the efficiency of Her Majesty's Service would be affected if the clause were struck out.

Question put.

The Committee divided:—Ayes 151; Noes 26: Majority 125.—(Div. List, No. 78.)

MAJOR NOLAN

said, as the matter they were dealing with was one involving capital punishment, they could not be too careful as to definition; and, therefore, he begged to strike out the words "in the manner of this Act not specifically mentioned."

SIR WILLIAM HARCOURT

said, he thought there was a good deal of force in this Amendment. He did think that in capital punishments they should have the offences made as specific as possible, and not leave anything in doubt. He certainly agreed with the hon. and gallant Gentleman that they ought not to leave minor offences open to a larger interpretation.

MR. STAVELEY HILL

also agreed that these words should be loft out.

Amendment agreed to; words struck out accordingly.

On Question, That the Clause stand part of the Bill?

GENERAL SIR GEORGE BALFOUR

, referring to replies given to him last year, said, he would much rather have the old Mutiny Act than this badly drafted one, and especially in the complicated state as it was proposed for the consideration of the Committee. He should move the omission of the clause. He was anxious as to the manner in which the proposed changes should be carried out. He would take the advice of the hon. Gentleman in the Chair as to the way in which the offences in Clause 7 should be amalgamated in Clause 4.

THE CHAIRMAN

was afraid he must tell the hon. and gallant Member that it was not part of his duty to advise him as to the form of his Amendment. Unless the Amendment was on the Paper, he had no precise guide as to the form in which the hon. and gallant Member intended to propose to amend the clause.

GENERAL SIR GEORGE BALFOUR

then submitted the clauses which could be combined, and which were read in an amalgamated form by the Chairman.

COLONEL STANLEY

pointed out that if the Government had differentiated the punishments, they had placed those differentiated punishments in a different category from that which formerly applied, and which applied also to the punishments provided for in another clause of the Bill. He could not, therefore, accept the Amendment which had been proposed.

GENERAL SIR GEORGE BALFOUR

held that the question of punishments was exactly the same in both clauses, and said he could not, therefore, accept the statement of the right hon. and gallant Gentleman the Secretary of State for War with regard to differentiated punishments in the present clause.

SIR WILLIAM HARCOURT

said, that the arrangement proposed under the present Bill differed from that which had formerly been followed under the Mutiny Act, in that the present proposal disregarded the similarity of punishments, and had reference solely to similarity of offences. The object of the Bill before the Committee was to get rid of the old principle to which he had referred; and what he, and those who thought with him, wanted was, on the other hand, to retain that principle.

GENERAL SHUTE

pointed out that the clause applied to offences committed in face of the enemy, and ought, therefore, to be kept distinct.

Amendment negatived.

Clause agreed, to, and ordered to stand part of the Bill.

Clause 5 (Offences in relation to the enemy not punishable with death).

COLONEL ALEXANDER

moved the omission, on page 2, line 33, of Subsection 4, which included under the provisions of the clause the offence of holding correspondence with or giving intelligence to the enemy without due authority. It was a needless repetition of Clause 4, Sub-section 3.

MR. O'CONNOR POWER

held that the more humane course would be to leave the clause as it stood in the Bill.

Amendment, by leave, withdraivn.

On Question, That the Clause stand part of the Bill,

GENERAL SIR GEORGE BALFOUR

remarked that as the clause was a penal one, and as the offences with which it dealt might be committed alike in garrison and in camp, the offences to be dealt with on these two Services should be classified, and he would move an Amendment accordingly.

COLONEL STANLEY

said, he could not assent with the mixing-up of miscellaneous offences under the Bill in the way proposed by the hon. and gallant General. That being the view of the Government, it was unnecessary for him to enter into any details.

Amendment negatived.

Clause agreed to, and ordered to stand part of the Bill.

Clause 6 (Offences punishable more severely on active service than at other times).

SIR AETHUB HAYTEE

moved, in lines 18 and 19, after the word "whatever" to insert the word "intentionally." The effect of his Amendment would be that the offence contemplated by the clause could not be held to have been committed, unless on the march an alarm was created by the intentional beating of drums, the firing of arms, or the adoption of any other course calculated to produce an alarm.

COLONEL DRUMMOND-MORAY

remarked that if the word "intentionally" was adopted in this instance, there was scarcely a clause in the Bill where it ought not to be inserted.

COLONEL STANLEY

thought the clause had better be left as it stood, because there might be cases in which, although there was no moral doubt of the intention to create an alarm, there might be a difficulty in proving the intention in strict legal form if the word was inserted in the Statute.

MR. COLE

supported the Amendment, on the ground that if a man was to be convicted under a penal section of a statute, there must be legal proof of his having been guilty of the offence charged. There would be no legal power to convict a man merely because no moral doubt of his guilt existed in the minds of those who were trying him. The intention was the very essence of the offence.

MAJOR NOLAN

held that there ought to be something in the Act to distinguish between offences which were some of them the result of intention and others of negligence. He therefore proposed to amend the proposed Amendment by inserting the words "or negligently" after the word "intentionally."

COLONEL STANLEY

said, that although he was not prepared to accept the addition of the word "intentionally" by itself, he would agree to amend the clause by inserting that and the other suggested words.

MR. HOPWOOD

pointed out that as the punishment of death might be inflicted for offences committed "intentionally," the words "or negligently" ought not to be inserted at this particular point, because it would involve capital punishment as the penalty for offences that were the result of more negligence as well as for offences which were the result of intention. If it was intended to provide a punishment for offences that were committed negligently, he thought that should be done by an Amendment at the end of the next clause.

MAJOR NOLAN

expressed his willingness to withdraw his Amendment to the Amendment proposed by the hon. and gallant Member for Bath (Sir Arthur Hayter).

Amendment to said proposed Amendment, by leave, withdrawn.

COLONEL STANLEY

said, that as he had accepted the Amendment, he should propose to insert the word "intentionally" in line 17 of Clause 4, making it necessary for misbehaviour in face of the enemy to be done "intentionally."

Amendment agreed to; word inserted accordingly.

SIR ALEXANDER GORDON

proposed that the word "treacherously" should be inserted in the sub-section providing for making known the parol or watchword to any person not entitled to receive it, or without good and sufficient cause giving a parol or watchword different from what he received.

Amendment agreed to; word inserted accordingly.

On the Motion of Sir ARTHUR HATTER, the following Amendment was made:—In page 3, Sub-section 10, lines 24 and 25, leave out "or part of a corps."

MR. J. BROWN

said, that there should be added to the offences for which a sentence should be liable that of neglecting to obey the orders of his post. He would, therefore, move in page 3, Sub-section 11, after line 31, to insert—"(C.) Neglects to obey the orders of his post." He believed that that crime had always been provided for hitherto by the 105th Article of War. But in the present Bill the offence was not recognized at all, except by Clause 11, which provided for the offence of "neglecting to obey any general garrison or other orders." He wished to point out that if the offence in question came within Clause 11, there was no distinction made between the offence when committed on active service and when not on active service. Yet there could be no doubt that the offence was of a much more serious character when committed on active service. He therefore begged leave to move that the words he had suggested should be inserted in Sub-section 11.

MAJOR NOLAN

strongly objected to the insertion of these words. A neglect to obey the orders of his post on the part of a sentry might be the orders of the officer, or the non-commissioned officer of the post, and it might be that the sentry did not understand those orders, and only disobeyed them through ignorance. He thought that the crime was sufficiently provided for already by the Bill, and it seemed to him that it would be a most serious thing to visit a sentry with such severe punishment for such an offence.

COLONEL STANLEY

said, that, undoubtedly, the offence for which it was desired to provide was a most serious one. It could be dealt with under the 105th Article of War, although he did not remember that it had been so. There seemed to him many objections to the introduction of the crime in this place in the Bill. He was unwilling to make the rule any more stringent than it was at present, and should oppose the Amendment.

MR. J. BROWN

stated that it was not his intention to push his Amendment. He was under the impression that a sentry had always proper orders given him at his post, and that there could, therefore, be no difficulty. He was strongly of opinion that there ought to be a distinction between the gravity of these offences on active and non-active service

Amendment, by leave, withdrawn.

COLONEL ALEXANDER

said, that under the clause a soldier might become liable to the punishment provided as much when he was acting in aid of the civil power as in war. It seemed to him that the soldier who committed any of these offences when called out in aid of the civil power was as culpable as if he was on active service; and he confessed that he saw no reason for altering the 17th clause of the Mutiny Act. He begged to move, in page 3, line 33, after "service," to insert "or when employed in aid of the civil power."

MAJOR NOLAN

observed that if the offences provided for by the clause could be committed when troops were called out in aid of the civil power as well as on active service, the result would be that an officer could not communicate with a mob in order to keep it quiet. The effect of the Amendment of the hon. and gallant Gentleman would be to make an officer who endeavoured to disperse a mob by speaking to it liable to punishment. It seemed to him that it would be a most serious thing to put troops, called oat in time of riot to quell disturbances, on the same footing as regarded those offences as when on active service. It would be impossible to have the same severe laws against communication with their own fellow-countrymen as with the enemy.

COLONEL ALEXANDER

begged to point out that in the 1st clause of the Mutiny Act the same thing was done.

COLONEL STANLEY

objected to the principle of the clause being carried further than it was at present.

Amendment, by leave, withdrawn.

MR. HERSCHELL

wished to call attention to a small matter. He would suggest that as the word "treacherously" had been inserted in the clause, it was worthy of consideration whether it should not be made an offence to make known the watchword, even though not done treacherously. It was a serious thing to make the word known when in the presence of the enemy, though it might not be fitting to punish it with death.

MR. A. H. BROWN

wished to ask the right hon. and gallant Gentleman the Secretary of State for War whether the provisions of this clause, providing for death or such less punishment as was in the Act mentioned, took away, in the case of Volunteers acting under the Mutiny Act, the right of summarily dismissing them? It seemed to him that they were to be punished in some way in the Act mentioned; but it would be as well to know precisely whether the right of dismissal was proposed to be taken away by this clause.

COLONEL STANLEY

did not quite understand the question of the hon. Member.

MR. A. H. BROWN

said, that the Mutiny Act would apply to the Volunteers when brigaded with the Regular Forces. He should like to know whether the ordinary power of summary dismissal would be taken away by the clause?

COLONEL STANLEY

was not aware whether the right of summarily dismissing a Volunteer would come under the purview of this Act. He would endeavour to get information on the point, and communicate it to the hon. Gentleman.

MR. A. H. BROWN

wished to know, also, whether, in Clause 46, page 21, a man could be punished twice for the same offence?

MR. HERSCHELL

said, that the question was dealt with in the 44th clause of the Bill, and that when that clause was reached it would be a good opportunity for discussing it.

Clause agreed to, and ordered to stand part of the Bill.

Mutiny and Insubordination.

Clause 7 (Mutiny and sedition), agreed to, and ordered to stand part of the Bill.

Clause 8 (Striking or threatening superior officer).

COLONEL ALEXANDER

moved to leave out lines 16 to 21 inclusive, being that part of the clause which provided for a person subject to military law striking, or using, or offering any violence to his superior officer being in the execution of his office, the offender being made liable by the Bill, on conviction by a court martial, to suffer death, or such less punishment as in the Act mentioned.

COLONEL STANLEY

said, that he could not assent to this Amendment. As he understood it, it was contrary to the intentions of the Committee which sat last year. He was desirous of carrying out the recommendations of that Committee, and, so far as possible, it had been his endeavour to differentiate the punishments awarded.

COLONEL MURE

said, that he had the same Amendment upon the Paper. The effect of the provision was that if a soldier struck his officer in the execution of his duty at home, that soldier was punishable with death; whereas if he struck his officer in the execution of his duty when on active service, he was only punishable with penal servitude. By the Queen's Regulations, page 501, No. 6, Appendix C, a non-commissioned officer was treated as always in the execution of his duty, and any soldier striking a non-commissioned officer, either at home or abroad, would be liable to death. If he struck an officer at home or abroad, he would only be liable to penal servitude. He thought there was some confusion in the manner in which the subject was dealt with. He confessed that it seemed to him that if that part of the clause proposed to be struck out were omitted the matter would be much simplified, and ample provision would be made for the offences against which the clause was directed. Another question presented itself—namely, as to how far the Queen's Regulations would rule this Act. This Act, if it passed into law, would be a permanent statute of law for the enforcement of discipline in the Army; but side by side with it existed the Queen's Regulations, which, by thus describing the non-commissioned officer, as it were prescribed the punishment of death for striking him whether at home or abroad.

COLONEL ALEXANDER

did not wish to press the Amendment against the sense of the House. He would, however, say that he had never known a court martial to take place whore the words "in the execution of his office" were not added to the charge. That was his experience, and he had seen some hundreds of courts martial.

SIR WILLIAM HARCOURT

observed, that there was a great difference between striking an officer in the execution of his duty if at home or if abroad. Moreover, the Articles of War drew a broad distinction between the two degrees of crime. The Committee were also of opinion that there should be a distinction drawn between the gravity of offences when on active service and when not an active service. That was the only difficulty in the existing law; but, in the same degree, that was now modified. It was the opinion of the Committee that the severer punishment should be kept for those cases where this offence was committed before the enemy.

COLONEL MURE

did not think that the point was quite understood. The difficulty was to appreciate what was exactly meant by "execution of his office." The officer in the execution of his duty when abroad on active service, and when at home, was in very different positions. If they took the case of Rorke's Drift, where so gallant a defence was made; supposing a mutiny had arisen in that little garrison; there was but a small body of men there, and a mutiny amongst them would have been a very serious matter. If a soldier there had mutinied, and had struck his superior officer while not actually commanding him, that soldier would only have been liable under the Act to penal servitude; whereas, if the officer had been at homo, and had been in the execution of his office when struck, the man could be punished with death. That appeared to him to be inconsistent, and, considering the very small be dies of British troops which, frequently on service, specially on colonial wars, were loft to hold dangerous isolated posts against superior numbers, he thought it highly desirable that some such provision should exist drawing the distinction to which he had alluded.

MAJOR O'BEIRNE

begged to move to report Progress. It was past 12 o'clock, and a good many Members wanted further time to study this Bill.

Motion made and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Major O'Beirne.)

MR. O'DONNELL

said, as they were dealing with the punishment of death in this clause, that they had far better give it too much consideration than too little. He felt, of course, great consideration for the opinions of those who were more thoroughly experienced in this branch of the law than himself; but still he felt that great responsibility was thrown on individual Members of Parliament in this matter. They were discussing what was undoubtedly an important and serious portion of the law of this country, and the Committee, therefore, ought not to grudge some extra time to a provision of this nature. There were already some strange contradictions in this clause. By the clause, any man who struck his superior officer when in discharge of his duty was made liable to the punishment of death; while a man, by a subsequent clause, who resisted an escort sent to arrest him was made liable to a less punishment, death not being mentioned. There was evidently a confusion here, which a little consideration might clear up. He therefore supported the Motion; although if it were the general wish of the Committee that this discussion should continuo a little while longer, he should not venture to oppose it. They must remember, however, that in other parts of the Bill a mistake would be of much less consequence.

MR. B. SAMUELSON

thought the anomaly complained of might be remedied, if the hon. and gallant Gentleman would withdraw his Amendment, and the clause were amended by omitting the words after "officer," and afterwards by omitting from the word "who," in line 22, to line 25. The difficulty in this case arose from different cases being mixed up together, and from the case of striking an officer, and that of using insubordinate or threatening language, being confounded. These were totally different offences, and should be punished differently. The clause, as amended, would then read in this way— Every person subject to military law who strikes or uses any violence to his superior officer shall, on conviction by court martial, be liable to suffer death, or such less punishment as in this Act mentioned. Discretion would then be left with the Court to deal with the case. As an officer was almost always supposed to be in the execution of his duty, these words would meet the justice of the case. The clause would then go on to say— And every person subject to military law who uses threatening or insubordinate language to his superior officer shall, on conviction by court martial, 'be liable either to be cashiered or to some summary imprisonment.' If that alteration were made, they would have no confusion between the cases of an officer at home and an officer abroad, and the punishments would be varied.

COLONEL STANLEY

said, this Amendment would make the law far more stringent than it was at present, for, under it, any person who was subject to military law who used any violence to his superior officer would be liable to suffer death, which was going further than the Act did at present. These clauses had been drawn very carefully, with the view of differentiating punishments as far as possible. Striking or offering violence to a superior officer in the execution of his duty was the most serious offence, and to that the most stringent punishment was attached. Then came offences of a secondary character; and every person who used violence to his superior officer, or threatening or insubordinate language, was subject to a less punishment—namely, to penal servitude if on active service, and, if otherwise, to cashiering or imprisonment. He hoped they would be allowed to carry this clause, and the next, after which he would not offer any opposition to the Motion to report Progress. They had already practically finished the discussion of this clause, and, as the next went with it, the two would take very little time.

Motion, by leave, withdrawn.

SIR ALEXANDER GORDON

said, the distinction between an officer in the execution and not in the execution of his duty had long been recognized in the Army, and a heavier penalty had always been awarded to the first offence. The hon. and gallant Gentleman (Colonel Mure) was wrong in supposing that the punishments were different at home and abroad. He had never heard of any distinction in the Act, and the Regulations were wholly subordinate to the Act. It was nonsense to talk about the Regulations of the Army being on an equality with Acts of Parliament passed by that House.

COLONEL ALEXANDER

said, he had no objection to withdraw his Amendment; but he had invariably been told that an officer was always considered to be in the execution of his duty. He did not think any hon. and gallant Gentleman could remember any court martial in which the words "in the execution of his office" were not inserted in the charge.

MRJOR NOLAN

said, the Regulation might be the fact as to the Guards, but it was not so in the Army.

COLONEL MURE

was unwilling to withdraw his Amendment, for he felt very strongly about it. He would again point out that if, on foreign service, a mutinous man struck an officer not in the execution of his duty he was only liable to penal servitude; while if a man struck an officer in the execution of his duty in Wellington Barracks, where he was surrounded by all the safeguards of civil life, he was subject to the death penalty.

MAJOR NOLAN

thought the clause very important. A commanding officer very rarely rubbed up against the temper of his men; but a non-commissioned officer, who was very often a young man only just promoted, very often did so. The man who forgot himself so far as to strike his officer ought to be very severely punished; but still he would not like him to be subjected to the penalty of death. The clause was a modification of the present law, and ought therefore, he thought, to be accepted.

MR. O'DONNELL

pointed out that this clause decreed the punishment of death to any soldier who offered violence to his superior officer. Now, at home, if a private gave a sergeant a thorough trouncing, was there the least probability that he would be executed; oven if he gave his commanding officer a thorough trouncing, was there the least probability either of his being sentenced to death? He could quite understand awarding such a punishment with the utmost severity in face of the enemy. By all moans let them shoot anyone who was insubordinate then, and have no mercy; but they ought to make a distinction in the law, when they knew a distinction would be made in fact. What was the use of leaving this enactment on the Statute Book, when they knew very well it would not be carried out. It only gave a grim and gory look to the Article.

COLONEL MURE

did not think he would do any good by dividing on his Amendment, so he would withdraw it.

Amendment, by leave, withdrawn.

Clause agreed to, and ordered to stand part of the Bill.

Clause 9 (Disobedience to superior officer) agreed to, and ordered to stand part of the Bill.

House resumed.

Committee report Progress; to sit again To-morrow.