ARMY DISCIPLINE AND REGULATION BILL— [BILL 88.]

HC Deb 16 May 1879 vol 246 cc571-616

(Mr. Secretary Stanley, Mr. Secretary Cross, Mr. William Henry Smith, The Judge Advocate General.)

COMMITTEE. [Progress 15th May.]

Bill considered in Committee.

(In the Committee.)

Clause 37 (Ill-treating soldier), agreed to.

Clause 38 (Duelling and attempting to commit suicide).

Mr. PARNELL

, in moving, as an Amendment, in page 16, line 7, after the word "suicide," to insert the words "while not undergoing a sentence of imprisonment," asked whether it would not be better to omit the 2nd sub-section from the clause? He thought that men convicted of breaches of military discipline should not be treated in the same way as felons and persons convicted of ordinary crimes, and he hoped that some guarantee would be taken under the Bill in order to secure this desirable result. They had a case the other day in which a sergeant of the 60th Rifles at Ginghilovo in South Africa, who merely committed an error of judgment in retiring a picket, had imposed upon him a sentence of five years' penal servitude. Common prison discipline in this country was neither more nor less than slavery; and he protested against the proposal to sentence a man already incarcerated to an additional term of imprisonment because, feeling that slavery, he attempted to commit suicide. There ought clearly to be some distinction between the treatment of military prisoners—men who were simply convicted of breach of discipline—and the treatment of men convicted of criminal offences in the ordinary sense. There should, in his opinion, be separate prisons, separate rules, and a separate system of treatment altogether. It was manifestly highly unjust and improper that men who were found guilty and convicted of simple breaches of discipline should be compelled to herd with ordinary criminals. He earnestly desired to press this matter upon the attention of the right hon. and gallant Gentleman the Secretary of State for War and the right hon. Gentleman the Home Secretary; and he hoped it would be carefully considered whether powers might not be given to the right hon. and gallant Gentleman to frame rules for the regulation and management of military prisons not only in England, but in other parts of the world. He simply moved his Amendment in order to put himself in Order. He did not intend to take a division upon the matter at present; but at a later stage of the measure he should be prepared, if necessary, to make a proposal embodying the views which he had indicated.

COLONEL MURE

was inclined to think the hon. Member for Meath (Mr. Parnell) had very far stretched a point in assuming that the usual treatment of convicts induced suicide, and that the same thing could be said of the treatment of military prisoners. It was another assumption, also, that in the case of the sergeant at Ginghilovo the man only committed an error of judgment. As yet, they had no evidence on that subject at all; but his (Colonel Mure's) impression was the other way, and he did not believe for a moment that a man would have been sentenced to five years' penal servitude for that alone.

COLONEL STANLEY

said, with regard to the case of the sergeant referred to, he had only seen what had appeared in the public Press. He had not yet received any of the Papers, and, therefore, as he had already stated, he was utterly unable to form any opinion. It was also a pure assumption that because a noncommissioned officer was sent to penal servitude he would be likely to commit suicide. He was, however, quite ready to admit the contention of the hon. Member for Meath (Mr. Parnell), that they must consider very carefully the circumstances under which military prisoners were confined in State gaols; and although he was not able in all cases to make separate rules for different classes of offenders, the point raised by the hon. Gentleman was one which had engaged, and would still receive, his own attention and the attention of his right hon. Friend the Home Secretary, with a view to its amendment to a certain extent.

MR. E. JENKINS

asked why, if the existing law were sufficiently strong to lay hold of offenders, and offences were defined in the Common Law, it should be necessary to make an attempt to commit suicide what might be termed a military offence? It could be well dealt with by the ordinary Criminal Courts. They had a punishment for the offence under the ordinary law, and why should not the offender be handed over to the civil power for trial? The certificate of the sentence would be enough to enable the military power to deal with the offender. He was not going to discuss the Ginghilovo affair either; but the time would come when the Government would have to answer for the strangeness of the fact that the offence of the General who lost an Army at Isandlana should be disregarded, while a sergeant—[Colonel STANLEY: I rise to Order]—was sentenced to penal servitude for retiring a picket.

THE CHAIRMAN

The question before the Committee at the present time is the Amendment of the hon. Member for Meath (Mr. Parnell) as to the punishment to be inflicted on soldiers who attempted to commit suicide, and the hon. Member for Dundee must confine his observations to that Amendment.

GENERAL SIR GEORGE BALFOUR

remarked that this was one of the many additions of novel crimes created by the present Bill, which he very much regretted. The new crime was not recognized by the old Mutiny Act, but only by the 104th Article of War, and which was in contravention of the rights granted to the Crown to make new crimes not provided for by the Acts of Parliament, and it was now legalized for the first time by being introduced into the proposed Act by the Secretary of State.

SIR WILLIAM HARCOURT

thought this a misapprehension of the law which would apply to many other cases. The Articles of War were not illegal; but they were legal so long as they did not go beyond certain penalties. The recital stated that "no man can be forfeit of life or limb without the authority of the Act of Parliament."

MR. O'DONNELL

said, the question of unnecessary duplication of crimes and punishments was raised by this and by a good many other clauses of the Bill. Certain punishments and crimes were clearly laid down in the ordinary law of the land; and why, in the preparation of the present measure, should the principle not have been observed by simply declaring that all the crimes known to the general law were also crimes in the Army, and that the punishments fixed under the general law were applicable in the Army, except in cases where for military purposes it was advisable either to add to or take away from the list of ordinary crimes? This sort of way of imperfectly going over the ground traversed by the general Criminal Law seemed to him to perpetuate a good many of the worst evils of confusion which existed in the old Mutiny Act and in the old Articles of War, and which ought to be improved and amended, and rendered as nearly as possible perfect on the present occasion.

MR. PARNELL

said, that apart from the evils of the present system, his reason for directing the attention of the Government to the subject was this—that he thought the Home Secretary did not take power in his Prisons Act of 1867 to make rules with regard to military prisoners as distinct from any other class of persons undergoing sentence; and if the right hon. Gentleman now desired to make such rules, it would be necessary for him to take power under the Bill now before the House. He sincerely hoped that the attention of the Government would be given to the subject; and, if necessary, he should be prepared at a future stage to bring it on again.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 39 (Refusal to deliver to civil power officers and soldiers accused of civil offences).

SIR ALEXANDER GORDON moved, as an Amendment, in page 16, line 14, to leave out the words "to deliver over to the civil magistrate or to." For the first time there was introduced here an offence against which it would be very difficult for an officer to defend himself. The terms of the present Act provided that the person wanted must he "under his command." These important words were now omitted, and the clause now punished any person subject to Military Law who refused to deliver over "any officer or soldier accused of an offence punishable by a civil court." It was not to be necessary that the person called on to deliver up a person should have any connection with, or any power or command over, the person to be punished. The word "wilfully" was also now omitted. Formerly, both in the Mutiny Act and in the Articles of War, the person must "wilfully neglect or refuse;" but those words were now omitted, making the clause far more severe. The duty of the officer no w was to render such assistance to the civil authorities as might be in his power. When Lord Melbourne was Home Secretary, the question arose whether a commanding officer should or should not be compellable by law to deliver over any soldier under his command. The question was referred to the Law Officers, and their opinion was communicated, by the desire of Lord Melbourne, to the Army. That opinion was to the effect that, while a commanding officer was not compellable, either by the Mutiny Act or by the ordinary processes of the Courts of Justice, to deliver up a soldier to a constable who had a warrant to execute against him, yet, at the same time, such facilities ought to be granted to a constable as to enable him to take the person. It came to this—that while an officer was not compellable to give up the person, yet that it was wise to do so, in order to avoid unseemly and dangerous collisions between the civil and the military powers.

COLONEL STANLEY

quite agreed that the words in the old Mutiny Act were "under his command." But the Articles of War did not say anything about command, and ran thus— Any officer or soldier who, on application being made to him for the purpose, shall wilfully neglect or refuse to deliver over to the civil magistrate, or to assist in the apprehension of any officer or soldier accused of any crime punishable by law. He apprehended, therefore, that so far they were reproducing the old law; and he was anxious also, as far as possible, to avoid any chance of a conflict between the civil and military authorities. He thought the clause had better remain as it was, for he saw no reason to omit the words.

GENERAL SIR GEORGE BALFOUR

reminded the right hon. and gallant Gentleman the Secretary of State for War that any constable could not at the present time be allowed to walk into any barracks just as he chose, and take away a soldier legally in confinement under Military Law. No doubt the civil power was supreme, and was so recognized by every officer of the Army. The officers well knew that they must obey all demands made by the civil magistrate to give up military persons when regularly and lawfully demanded. He had known cases where a military person, when about to be flogged, was taken out of the square formed by the troops to witness the punishment, and not the slightest hesitation existed in giving up the body on the Judge's writ being presented to the officer in command. And as there had been no conflict up to the present between the two powers, civil and military, where was the need for these words, which might lead to serious strife by reason of a constable making a demand on a sentry or a corporal to yield up a military prisoner?

MR. RYLANDS

said, he was very sorry that he could not agree with his hon. and gallant Friend the Member for East Aberdeenshire (Sir Alexander Gordon). Clearly, if a soldier was guilty of any offence against the law an officer was bound by every consideration to deliver him up to the civil authorities. It would be most unfortunate if any doubt whatever were allowed to remain upon that point, and no encouragement should be given to commanding officers to refuse to assist the civil power in dealing with soldiers who had been guilty of criminal offences. But if his hon. and gallant Friend thought the clause, as it now stood, pressed upon commanding officers and regimental officers in a manner that was not already the case, he should have no objection to the word "wilfully" being inserted. That would, he thought, meet the objection that had been raised. If the Amendment were withdrawn, he trusted the right hon. and gallant Gentleman the Secretary of State for War would consent to the insertion of the word "wilfully."

GENERAL SHUTE

observed, that the clause only referred to commanding officers. He thought it would be far better if the few words to which objection had been taken were omitted.

SIR WILLIAM HARCOURT

said, that a commanding officer was, by the present law, bound to deliver over to the civil power any officer or soldier under his command, guilty of any act contrary to law, on proper application being made to him. So far as he could see, this clause practically reproduced Clause 76 of the old Mutiny Act, except, it might be, by the omission of the words "under his command." He thought that those words were properly omitted, in order to insure in every case the due execution of the law against any soldier. It was undesirable that an officer should not be bound in all cases to aid the civil power in the apprehension of military offenders.

SIR ALEXANDER GORDON

observed, that by the clause, as it stood, an officer was to be punished if, on application being made to him, he neglected or refused to assist in the apprehension of any officer or soldier charged with any offence in any Civil Court. Those words went too far, and what he asked was that it should not be made penal for an officer not to have given into custody a soldier charged with any offence, when that officer might know nothing about it, except that the soldier was under his command.

MR. E. JENKINS

remarked, that the clause was in accordance with the existing law. The Mutiny Act, it was true, confined the offence to a commanding officer; but the 96th Article of War provided for any officer or soldier who, on application being made to him, should neglect or refuse to deliver over to the civil magistrate any officer or soldier accused of an offence punishable by a Civil Court. He did not think it could be said that the clause altered the existing law.

Amendment negatived.

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

Clause 40 (Conduct to prejudice of military discipline).

SIR WILLIAM HARCOURT

said, this was known in the Army as the "Devil's Clause." On general principles, he should be inclined to think the clause objectionable, as the great object of all criminal legislation was that crime should be specifically defined. He should be very glad if such a provision could be done away with; but he did not think it was possible. It had been found necessary, for the maintenance of discipline, to have some such clause as that, which corresponded with regard to the soldier very much to the clause with reference to an officer making punishable conduct unbecoming an officer and a gentleman. As in the case of an officer it was necessary to provide generally for conduct unbecoming an officer and a gentleman, so, in the case of a soldier, for any act, conduct, disorder, or neglect to the prejudice of good order and military discipline not otherwise specified in the Act. The evil, no doubt, was that this clause might be used by officers in courts martial to try soldiers for offences specified in other clauses. He desired that it should be made quite clear that that was not to be done. Evidence was given before the Select Committee to show that there was a disposition to use the clause for cases in which it was not intended to apply. To meet that objection he should, therefore, propose to put in words at the end of the clause declaring that it was not to be employed for purposes of punishment in matters for which a specific punishment was provided by the Act. He should now move, as an Amendment, in page 16, lines 25 and 26, to leave out the words "though not in this Act otherwise specified," and would move later on to insert the provision he had mentioned.

COLONEL STANLEY

said, that, on consideration, he agreed with the Amendment proposed by his hon. and learned Friend the Member for Oxford (Sir William Harcourt). There was a good deal to be said on both sides; but as it was in accordance with the general principle of the Act to specify crimes and punishments, it was certainly undesirable to leave it in doubt that this clause was only intended to apply to offences upon which the Act was silent.

Amendment agreed to; words struck out accordingly.

SIR ALEXANDER GORDON moved, as an Amendment, in page 16, line 27, to leave out the words "on conviction by court martial," in order to insert "be tried by court martial, and on conviction shall." The 105th Article of War, referred to in the margin of the Bill as being that upon which the clause was founded, declared that offences to the prejudice of good order and military discipline should be taken cognizance of by a court martial. That provision had been in use for many years, and had worked well. Many hon. Members were most strongly opposed to the offences of officers and soldiers being tried by any other means than by court martial, and the object of the Amendment was to insure that course being taken. He sought to make it imperative upon the Secretary of State for War, when he took cognizance of any of these offences, to deal with them only by bringing the officers or soldiers charged therewith before a court martial.

COLONEL STANLEY

said, that, whatever might be the effect of the 105th Article of War, the hon. and gallant Member must see that the effect of the Amendment he proposed would be to render the clause which they were passing more stringent. Whatever act might be construed as prejudicial to good order and military discipline, however trivial, must, if the words were inserted, be tried by court martial, and lie did not think that that should be done. The alteration of the clause would really tend to increase the danger which the hon. and gallant Gentleman feared. Although the Article of War might be as he had stated, yet it was well known that it was not put in force, and that great discretion was exercised by the authorities.

MR. E. JENKINS

remarked, that the right hon. and gallant Gentleman admitted that the Article of War specifically stated that these offences should be taken cognizance of by a court martial; but he had gone on to observe that they were not always taken cognizance of. But the contention of his hon. and gallant Friend the Member for East Aberdeenshire (Sir Alexander Gordon) was that persons should not be treated as being guilty of these offences without being previously tried by a court martial. It was necessary to introduce the words he proposed to insure that being carried out. He wished to point out to the Committee that the clause, as it stood, was more severe than the Article of War. Whereas the Article of War gave some sort of direction to a court martial that the crime or offence should be taken cognizance of according to its degree, yet, in this clause, those words were left out. No such direction was anywhere given to a court martial by this Bill, and anyone who knew anything about military men would see that when a man was tried before a court of officers for having shaken his fist at his commanding officer, or some little offence of that sort, the absence of any direction to the court martial to treat the offence according to its nature and degree would considerably prejudice the offender. In his opinion, that was a matter well worthy of attention. As courts martial were become more ordinary, it was more necessary than ever that clear and explicit directions should be given by the Bill to persons not instructed in law as to what they were to do. There was a great deal of force in the view of his hon. and gallant Friend that no man ought to be punished for crimes which came properly under this clause, unless he had been previously brought to trial before a court martial. That was a point upon which they had been endeavouring to insist throughout the Committee, and he should go into the Lobby with his hon. and gallant Friend if they went to a Division upon it.

SIR WILLIAM HARCOURT

did not think it quite certain that the Amendment proposed would make the clause less severe. On the contrary, he thought it would make it more severe, for the clause covered every "act, conduct, disorder, or neglect," and no one could wish a man to be tried by court martial for a very trivial offence. For slight offences a commanding officer could award punishment to soldiers, and no one could insist that every one of these should be tried by court martial. If that were done, the clause would be made much more severe. The authorities avoided doing so now by putting a liberal interpretation upon the Article of War. The hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) wished to insert his Amendment in order that everyone charged with these offences might be tried by court martial. What he (Sir William Harcourt) should contend, on the other hand, was that if lighter penalties were provided, then the authority of the Statute was not needed; but if a court martial were required, then the words in the clause, "upon conviction by court martial," were sufficient to meet the case.

MAJOR NOLAN

could not support the Amendment. In his opinion, it would make the Act, already stringent enough, still more stringent. A commanding officer would be placed in a position in which he would have to say to an officer or soldier—"You have committed an act by which, under this clause, you must be dealt with by court martial." He thought it would be better if the words were not inserted.

LORD ELCHO

considered it necessary that the Army should be kept in thoroughly good order and discipline. But when he heard the hon. Member for Dundee (Mr. E. Jenkins) refer to a soldier's shaking his first in the face of his commanding officer as a very small offence, he thought it right to say that, in his opinion, expressions such as that should not be used in the course of that debate. What passed in that House was very fully reported, and when soldiers read in the newspapers that a distinguished Member of the House of Commons had stated that it was a trivial offence for a soldier to shake his fist in his commanding officer's face, it would have a very prejudicial effect.

MR. E. JENKINS

observed, that the noble Lord opposite (Lord Elcho), being a Scotchman, seemed to have no sense of humour. But, perhaps, when he (Mr. E. Jenkins) made use of the words complained of, he did so unadvisedly. He would venture to point out that the clause, as it now stood, was very much more severe than the Article of War, because the Article of War took cognizance of the offence according to its degree, whereas the clause contained no such modification. No one would wish that every person who had committed any of these offences should be tried by court martial, only that they should be liable to be so. He thought that both officers and soldiers would prefer the 105th Article of War to the clause of the Bill.

MR. GOLDNEY

did not think that the hon. Member for Dundee had read the Article of War correctly. In a compromise between the two, it seemed to him (Mr. Goldney) that the clause was the more favourable to the persons coming under it.

SIR ALEXANDER GORDON

thought it obvious to every military man that his Amendment was not capable of the construction put upon it by the hon. and learned Member for Oxford (Sir William Harcourt). The Article of War had been in use about 100 years, and, never having been subjected to the hypercriticism of the hon. and learned Gentleman, it had never been construed in the way it was now put by him. It was never intended that everyone should be tried by court martial for every offence, and he should contend that that was not the proper construction of his Amendment. But the object of his Amendment was to prevent the system that had only been recently adopted and had come into practice, by which the Secretary of State for War overrode all law by pronouncing judgment himself upon officers and soldiers charged with offences. Such a system as that would never formerly have been thought of.

MR. RYLANDS

thought, after the very serious statement which had been made as to the conduct of the War Office in the matter of courts martial, some explanation should be given. The hon. and gallant Gentleman the Member for East Aberdeenshire (Sir Alexander Gordon) had, in the most distinct manner, charged the Secretary of State for War with a very grave misdemeanour. He had stated that the right hon. and gallant Gentleman had been in the habit of making use unnecessarily of the power he possessed to deal with military offenders, and of not bringing offences under the cognizance of courts martial when they ought to have been. When hon. and gallant Gentlemen in the Army thought it necessary that some provision should be made against this sort of procedure, he was of opinion that the Committee ought to take some notice of the matter. He (Mr. Rylands) was very much influenced by the authority of the hon. and learned Member for Oxford (Sir William Harcourt) in other matters; but upon this clause he was not disposed to regard him as an exclusive authority. He thought that it was undesirable that for some trivial offence there should necessarily be a court martial; but he quite agreed that if there was any chance of the clause being made use of to perpetrate any injustice upon the officers and soldiers of the Army, it was desirable by every means to prevent it. He did not, however, think that it had been satisfactorily shown that the effect of the Amendment proposed, which was designed to counteract a very pernicious practice, would be that imputed to it—of making a court martial necessary in the case of every trivial offence. He should, therefore, support the Amendment.

SIR HENRY HAVELOCK

said, he was of opinion that the effect of the Amendment of the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) would be that every person subject to military law committing any offence contrary to good order and military discipline must of necessity be tried by a court martial. He did not think that that was a result which was desirable, and that there should be no option but to try every man by court martial. Although he agreed with the desirability of offences being tried by court martial, yet, for the reasons he had alleged, he could not support the Amendment.

MR. HOPWOOD

was of the same opinion as the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) as to the propriety of making courts martial obligatory on the "War Office in lieu of secret procedure. But, still, he thought his Amendment open to the objection urged against it—that every offence, however small, would have to be tried by court martial. He would, therefore, venture to suggest that he should withdraw his Amendment, and that after the words "court martial" in the clause, should be inserted the words "and not otherwise." That would effect his object that no man should be sentenced to any of the penalties provided by the clause, except after conviction by courts martial, and would also meet the objection that had been raised to his Amendment.

SIR ALEXANDER GORDON

was quite willing to adopt the course proposed by the hon. and learned Gentleman the Member for Stockport (Mr. Hopwood), and begged to withdraw his Amendment. Before he did so, however, he would ask the hon. and gallant Gentleman the Member for Sunderland (Sir Henry Havelock) whether, in the whole course of his service, he had ever interpreted the 105th Article of War in the same manner that he had done that day. He must have served on many courts martial; but he (Sir Alexander Gordon) would venture to say that it was impossible for him ever to have placed the same construction on the Article of War as he had now done.

THE CHAIRMAN

inquired what course the hon. and gallant Member for East Aberdeenshire intended to pursue?

SIR ALEXANDER GORDON

stated that he would withdraw his Amendment.

Amendment, by leave, withdrawn.

MR. HOPWOOD moved to insert, in page 16, line 27, after the words "court martial," the words "and not otherwise."

SIR HENRY JAMES

observed, that those words would do nothing at all. It was only saying that that should be done which should be done.

MR. HOPWOOD

did not think there was anything extraordinary in inserting the words, which were very usual in the Acts of the Legislature. It was simply said that something should be done by court martial, and by that alone. If those words were not put in, the clause would be open to the construction that an officer might be cashiered for such offences as these, although not tried by court martial. He ventured to say that if the words "and not otherwise" were inserted, it would have the effect of the Legislature saying in no other way than by court martial ought an officer to be cashiered.

SIR WILLIAM HARCOURT

observed, that that construction would destroy the power of the Crown to cashier officers. If an offence could not be cashiered except by court martial, as, according to the hon. and learned Member for Stockport, would be the case if his Amendment were adopted, it was a direct interference with the power of the Crown to cashier at its absolute discretion. That power would be indirectly taken away by his Amendment.

MAJOR NOLAN

contended that the words "on conviction by court martial" governed the word "soldier" lower down in the clause, and, under that provision, a commanding officer might give 21 days' imprisonment. It would be very serious, indeed, if the words proposed were put in the clause, because it would prevent a commanding officer dealing with a soldier by inflicting on him some small punishment without sending him to a court martial.

MR. MEREWETHER

agreed that the Amendment would prevent a commanding officer, who found a man guilty of something to the prejudice of good order and military discipline, even reprimanding him, for he could not be dealt with otherwise than by court martial, reprimand being one of the penalties specified.

MR. HOPWOOD

did not wish to affect the Prerogative of the Crown to dismiss an officer; but the principle on which they insisted was, that whenever any person was charged with any such offence as was indicated in the clause, and was liable to be tried by court martial, he should be tried by court martial, and should be dealt with in no other way. Such a provision as that would not interfere with the Prerogative of the Crown to dimiss anyone for any or no reason whatever. So far as this clause was concerned, and so far as it laid down certain charges, then those matters ought to be decided upon by a proper tribunal.

MR. MUNTZ

remarked, that a man could be dismissed without any court martial at all. He did not think that anyone would wish to interfere with the Prerogative of the Crown to dismiss an officer from the Service without assigning a reason.

MR. E. JENKINS

said, he should move to report Progress, as the Committee did not seem disposed to hear him on the matter.

Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. E. Jenkins.)

COLONEL STANLEY

was not aware that the hon. Gentleman had met with any interruption. Many of the comments upon some of those points were not shared in by the body of the Committee; but if they reported Progress whenever that was the case, they would be kept till the Whitsuntide Holidays considering the Bill. There had been no interruptions, and, on the contrary, the discussion had gone on most smoothly. His objection to the Amendment was that whereas the authorities now exer- cised a discretion with regard to sending offences before a court martial, if it were adopted, when once they had taken cognizance of a case, there would be no option but to have it tried by court martial, and thus subject the offenders to much more severe punishment. Therefore, he wished [the clause to stand as it was, and he trusted that the Committee would proceed and give its decision upon what, after all, was a very small matter.

SIR HENRY HAVELOCK

objected to the Amendment, both on the ground that it might be an interference with the Prerogative of the Crown, and that it would prevent offences, however small, being dealt with otherwise than by court martial. It was not desirable to interfere with the Prerogative of the Crown in an indirect manner; and sending cases to court martial instead of dealing with them summarily would, so far from being an alteration in the direction of leniency, be exactly the reverse.

MR. E. JENKINS

stated that he had no desire to stop the progress of the debate; but if the right hon. and gallant Gentleman the Secretary of State for War would put some little restriction upon the tempestuous element behind him, he thought they would get on better. He had taken considerable pains to acquaint himself with the details of this measure, and thought that the Committee should pay some regard to the objections brought forward. He would advise his hon. and learned Friend (Mr. Hopwood) to withdraw his Amendment after the opinions that had been expressed as to its effect upon the Prerogative of the Crown. Undoubtedly it was the Prerogative of the Crown to dismiss without any reason given; and as regarded that Prerogative, it was not proposed for one moment to interfere with it. They proposed only to point out that if an officer were charged with the offences cognizable by military tribunals established in the Act, that then, in relation to those offences, he should be allowed the privilege of a trial by court martial before the Crown exercised its Prerogative. That might be an interference with the Prerogative of the Crown to some extent, as it asked the Crown, before it dismissed officers for particular offences, to restrain its Prerogative until they had been tried by courts martial under the Act. No doubt, if the Crown were advised to relieve an officer of his trust or dismiss him from the Service upon a ground not made known to the general public, but which was supposed to be satisfactory, that could be done even if the Amendment were adopted. Much scandal would, however, arise from the practice being largely adopted. A bad effect was produced on the public mind by dismissing an officer who had been charged with a crime under the Act, because it was found inconvenient to the officers at the Horse Guards to try the matter by reason of someone else being mixed up in the affair. Whenever an offence was charged against an officer, he ought to be tried for it, in order that he should be either properly punished, or that he should have an opportunity of making his innocence clear to the whole world. The consequence of dismissal from the Service on the social status of the accused was very serious, and so grave, that it was a very harsh thing indeed to deprive a man of an opportunity of proving his innocence before a court martial. It was impossible for the Crown to ignore the fact that there was a Proviso in the Act for trial by court martial. He begged to withdraw his Motion to report Progress.

Motion, by leave, withdrawn.

MR. HOPWOOD

said, that as he did not find sufficient unanimity with regard to his proposal, he begged to withdraw his Amendment.

Amendment, by leave, withdrawn.

SIR ARTHUR HAYTER

said, that he had to move an Amendment with regard to punishment provided by this clause. It was extremely objectionable that different punishments should be inflicted, and he wished to move to leave out the words at the end of clause "or such less punishment as is in this Act mentioned." In Clause 44, punishments were detailed, and cashiering was placed in a lower place than imprisonment, although it was provided that an officer should be sentenced to be cashiered before being sentenced to penal servitude or imprisonment. He would also move that as imprisonment was made by this clause to follow cashiering, the words "should be liable to be cashiered" should also be struck out.

Amendment proposed, In page 11, line 27, to leave out, after the word "liable," to the word "soldier," inclusive, in line 29.—(Sir Arthur Hayter.)

Question proposed, "That the words 'if an officer' stand part of the Clause."

SIR WILLIAM HARCOURT

remarked, that this was a minor offence clause; but some act, infringing good order and discipline, might be very serious. He did not think that it would be well to limit the punishment in the way suggested by the hon. and gallant Member.

MAJOR NOLAN

said, that the Amendment proposed would have the effect of increasing, rather than of lessening, the stringency of this "Devil's Clause." The clause had already got a bad name, and the tendency of the Amendment was to increase this stringency. He had been very anxious all through this Act to lessen its stringency, or to prevent its being increased, both as regarded officers and men. He thought it a mistake to put officers and men on the same footing. There had always been two classes—officers and men—and he thought it right that the men should be kept distinct, for if all were promoted to be officers, it would be impossible to do anything at all. This was a very sweeping clause, and as it took in nearly everything, he did not think that the punishments should be made too heavy. His opinion was that, in many cases, officers should be dismissed, instead of being cashiered. He had a similar Amendment to move with respect to the men—namely, to limit their imprisonment to 84 days. He thought that that term was quite long enough, and that it was desirable not to give too heavy punishments for undefined charges. Every act which could, by any possibility, be construed as prejudicial to military law and discipline was brought under this law, and if the clause was so very stringent, he thought it would fail in its object. He might observe that there was one very mischievous consequence of this clause which would be partially removed by the Amendment of which Notice had been given by the hon. and learned Member for Oxford. This clause had a very bad effect upon the Army, because it prevented officers studying military law. It had been found so easy to bring in every crime under this clause that the other provisions of the Act were neglected. Numbers of cases were brought in under the 105th Article of War which might very well come under other provisions. He hoped that the Government would not adopt the Amendment which had been proposed, and that they would rather go in the direction of mitigating than increasing the punishments given under the clause.

MAJOR O'BEIRNE

referred to a case which had happened in which a man had been given 68 days' imprisonment by a court martial. The entire procedure was afterwards quashed; but it was held that there was evidence under the clause. He thought that from its operation a constant miscarriage of justice occurred.

COLONEL STANLEY

thought it would be better to adhere to the wording of the clause as it stood. He agreed with the hon. and gallant Member for Galway (Major Nolan) in much that he had said; but he was, at the same time, of opinion that it would not be quite wise to introduce words into the clause limiting, as was proposed, the discretion of courts martial, because it was perfectly conceivable that cases might occur, though perhaps very rarely, in which it would be desirable and necessary that a very severe punishment should be inflicted. As to the punishment of imprisonment, the object throughout the Bill had, as a rule, been to confine it to such cases—cases in which there was something of violence, or something that was disgraceful in the nature of the offence committed. Cashiering was, no doubt, a very severe punishment, almost the severest that could be inflicted upon an officer, short of death; but there were some instances in which it would be felt to be a less severe punishment than imprisonment, which certainly could not, he thought, be fairly maintained to be regarded with the same sort of feeling by both officers and men.

SIR ARTHUR HAYTER

was not convinced by the arguments which had been urged against the Amendment, which he felt it to be his duty to press to a Division, being of opinion that the clause conferred too large a power upon courts martial in the punishment of what, after all, might be very trivial offences.

Question put.

The Committee divided:—Ayes 157; Noes 73: Majority 84.—(Div. List, No. 97.)

MAJOR NOLAN moved, as an Amendment, in page 16, line 28, the omission of the word "cashiered," with the view of substituting for it the word "dismissed." He contended that cashiering was too severe a punishment to inflict upon an officer for such offences as were contemplated under the operation of the clause, and that dismissal would quite as effectually answer the purpose of preventing conduct prejudicial to good order and military discipline. He also intended to propose a second Amendment, limiting the period of imprisonment which might be inflicted on a soldier under the clause to 84 days. If those Amendments were agreed to, the severity of the clause as regarded both officers and men would be considerably mitigated, and the powers which it conferred upon courts martial would be less liable to abuse.

COLONEL STANLEY

said, he was sorry he could not accept the Amendment. He might point out to the hon. and gallant Gentleman that so many offences wore specified in other clauses of the Bill that the clause under discussion would, in all probability, be reduced to a minimum in its operation. It was, at the same time, perfectly possible that there might be some very serious offence which would have to be tried under the clause for which the punishment of cashiering would be by no means too severe. On general principles it was, he thought, expedient to maintain that form of punishment in the ease of the officers; while it would also, in his opinion, be injurious to the Service to limit the term of imprisonment in the case of the men as was proposed. He would add that if a maximum punishment were fixed by the clause, it would in practice be very likely to become the minimum.

COLONEL ALEXANDER

pointed out that, under the operation of the clause, the punishment of cashiering would not necessarily be inflicted on an officer for an offence to the prejudice of good order and military discipline. He would merely be liable to it in those cases in which, in the opinion of a court martial, the offence of which he was guilty called for so severe a punishment,

MAJOR NOLAN

said, the argument of the right hon. and gallant Gentleman the Secretary of State for War, that if a maximum punishment were fixed, it would be likely to become the minimum, was not borne out by experience. The maximum penalty of two years' imprisonment was very rarely inflicted in practice, and was very frequently reduced by regimental courts martial to imprisonment for only two or three days.

GENERAL SIR GEORGE BALFOUR

thought the discussion only seemed to furnish another illustration of how confused and confusing were the provisions of this Bill. For his own part, he regretted very much that, instead of making such a proposal as that embodied in the present clause, the Secretary of State for War had not adhered more closely to the Articles of War and the Regulations already in existence, which long experience had proved to have worked satisfactorily. The Bill ought simply to have been a consolidating Bill, and another Bill should have been introduced, providing for changes in the existing law and Articles of War. This was the command of the Statute Revision Committee. The second Bill, on being agreed to in Committee, might then have been amalgamated with the consolidated Bill. In this form the Military Law should have been passed, without raising the numerous difficult questions already discussed.

MR. PARNELL

expressed his surprise that the Secretary of State for War should have refused to accept the Amendment. Of the two, he might add, the second Amendment of his hon. and gallant Friend the Member for Galway (Major Nolan) seemed to him to be the more important. All it asked the Committee to affirm was that no punishment should be inflicted on a private soldier exceeding 84 days' imprisonment for the commission of any offence which it was found impossible to define in the Act itself. That, he confessed he could not help thinking, was a most reasonable proposal. There was no grave or serious offence which had not been abundantly defined in the Bill already; and it could, therefore, be only for some trifling offence that a soldier could be tried by a court martial and sentenced to imprisonment under the operation of the clause now under discussion.

COLONEL COLTHURST

hoped the right hon. and gallant Gentleman the Secretary of State for War would reconsider his decision in the matter. There were, in his opinion, very few cases in which a court martial would think it necessary to sentence a man to a longer period of imprisonment than 84 days. If a man was sentenced to six or 12 months' imprisonment, the evil results were likely to be far greater than the punishment itself. As to the first part of the clause which related to officers, he did not think it would be worth while to interfere with it.

COLONEL MURE

said, he could not support the first Amendment of the hon. and gallant Member for Galway (Major Nolan). The second, however, was, he thought, entitled to the favourable consideration of the Committee. As had been observed in the course of the discussion, every serious offence had already been defined in the Bill; and there ought, in his opinion, to be some limitation imposed on the powers of courts martial in dealing with those trifling offences against good order and discipline which might arise under the operation of the clause. As a general rule, of course, great powers must be given to those who were intrusted with the administration of the affairs of the Army; but as there was great variety in the tone and temper of officers in the command of regiments, so was there great variety in the severity of the punishments which were inflicted on the men under them from time to time. That being so, it would, he thought, be very advisable to limit the power conferred by the clause, as the hon. and gallant Member for Galway proposed to do by his second Amendment. It was a limitation to which commanding officers themselves would, he believed, be far from objecting.

MR. HOPWOOD

contended that as the clause applied, and that only in general terms, to a number of small and trivial offences for which it had been found impossible to provide in the other clauses of the Bill, it would be only wise and fair for the Government, especially after the remarks which had fallen from hon. and gallant Members who were so well acquainted with the subject, to provide that the punishment to be inflicted for those offences should not exceed a maximum. He entirely dissented from the view of the right hon. and gallant Gentleman the Secretary of State for War that because the extent of the punishment was named in the clause it would invariably be adopted, and the maximum become the minimum. His experience of Courts of Law did not bear out this view, and he hoped the Amendment would be agreed to.

SIR WILLIAM HARCOURT

, while admitting that there were one or two points of some difficulty involved in the clause, said, its real object was to provide a means of dealing with unforeseen offences which, so far as he was aware, were not provided for under the Military Law as it stood. The Bill made definite provisions against all serious offences; but it was desirable, in his opinion, that the whole ground should be covered, and that there should be the means of inflicting adequate punishment for conduct prejudicial to good order and discipline in the Army whenever it occurred.

SIR ALEXANDER GORDON

wished to call the attention of the Committee to the opinion of the draftsman of the Bill, as having an important bearing on the subject under discussion. The draftsman, in giving his evidence before the Select Committee upstairs, said he did not believe the ingenuity of man could discover a crime which could not be tried under the operation of the first part of the Bill, and that if any gentleman present at the time, whether soldier or civilian, could tell him of any such crime, he would give the question up. That being the opinion of the draftsman, would it not be wise, he would ask, to accept the Amendment of the hon. and gallant Member for Galway (Major Nolan), limiting the period of imprisonment in the case of a soldier found guilty, under the present clause, to 84 days?

SIR CHARLES RUSSELL

said, he could not see why, if the punishment of cashiering, which was one of great severity, might be inflicted upon an officer under this clause, his hon. and gallant Friends opposite who supported the second Amendment of the hon. and gallant Member for Galway (Major Nolan) should suppose that an offence for which a soldier might be tried under it might not be one of considerable magnitude, also deserving of severe punishment.

MR. MEREWETHER

pointed out that an offence which was perfectly obvious the moment attention was called to it, that of injuring the Revenue by destroying Her Majesty's coinage, had been declared in the Courts of Law this year not to be an offence under the existing Acts by two learned Judges; while two others, including the framer of the original Code, held that it was. That fact, he thought, was sufficient to show that it was not easy to provide for every offence specifically in an Act of Parliament, and it was very probable that the counsel for a prisoner before a court martial would not be very long in finding out some serious offence which was not defined in the clauses so carefully framed by the draftsman of the present Bill.

MR. RYLANDS

would remind the Committee that the Bill had been drafted with the greatest care by a gentleman whose experience extended over a long period of time, and that the utmost pains had been taken to include in it every known offence which was at all likely to be committed. To provide, however, for the possibility of there being some offence which was not contemplated by the framers of the Bill the words— That is to say, is guilty of any act, conduct, disorder, or neglect, to the prejudice of good order and military discipline, were embodied in the clause under discussion. That being so, and every serious offence being already provided for, it appeared to him, as it did to almost every hon. Member who had taken part in the discussion, that the punishment which might be inflicted under the clause should be limited as far as possible. If, therefore, his hon. and gallant Friend the Member for Galway did not press his first Amendment, he would, he hoped, at all events, take a Division upon the second.

MR. MORGAN LLOYD

was also of opinion that the words of the clause were so vague and uncertain, and allowed courts martial so great a latitude in the exercise of their discretion, that it was highly desirable the punishment which might be imposed under it should be limited. What, for instance, was an offence against good order? One commanding officer might think one thing amounted to an offence against good order, while another might be of the contrary opinion. Now, as every act which could amount to a military crime was already comprehended within the provisions of some section of the Bill, it seemed to him that such a clause as that under discussion ought to be confined to offences of minor importance, and that latitude should not be given to tribunals acting under it to punish very severely acts which, in the estimation of one tribunal, might amount to offences, while another tribunal might be disposed to regard them as no offences at all. He hoped, therefore, the Government would accept the Amendment.

GENERAL SHUTE

said, every hon. and learned Gentleman, and, indeed, every brother magistrate, must be aware that in Civil Law it would be simply an absurdity to attempt to define in detail every crime that could possibly be committed. It would be still more absurd to attempt to do so with regard to the maintenance of military discipline; nor was it likely that commanding officers would differ as to what offences were to the prejudice of good order. It was also extremely improbable that too severe a punishment would be inflicted under the clause, especially seeing that the sentences passed by courts martial had to be confirmed by the confirming officer, and had to be submitted to the Judge Advocate General's Department. There was no fear, therefore, of there being any such inequality, as some hon. Members appeared to apprehend, in the punishments awarded; nor did he think that there was the least cause for the alarm that a greater punishment would be imposed than was desirable or expedient. Some atrocious crime might be committed, especially on field service, which was not at all contemplated by the framers of the Bill, and for that the present clause would provide.

MAJOR NOLAN

said, that in consequence of what had fallen from some of his hon. Friends near him, he would withdraw his first Amendment, and take a Division only upon the second. He might be allowed to point out, in reply to the hon. and gallant Member for Brighton (General Shute), that if the offence committed were an atrocious one, it ought not to be tried under the present clause at all; and the ingenuity of the hon. and gallant Gentleman would, he felt satisfied, very soon bring it under the operation of some of the preceding clauses in which the penalties for grave crimes were set forth. One very good reason, in his opinion, for limiting the clause was that it was likely to be put into operation where there were officers who knew little or nothing about Military Law. The punishment which might be inflicted under it ought, for that and other reasons, in his opinion, to be diminished and defined. It was most injudicious, he thought, to retain the clause in the Bill at all; but if it was to be retained by way of experiment, it should be restricted as much, as possible. He begged, however, to withdraw the Amendment before the Committee.

Amendment, by leave, withdrawn.

MAJOR NOLAN moved the second Amendment, providing that in the case of a soldier the period of imprisonment should not exceed 84 days.

Amendment proposed, In page 16, fine 29, after the word "imprisonment, to insert the words "for a term not exceeding eighty-four days.—(Major Nolan.)

Question put, "That those words be there inserted."

The Committee divided:—Ayes 68; Noes 198: Majority 130.—(Div. List, No. 98.)

CAPTAIN MILNE HOME

begged to move the Amendment standing in the name of his hon. and gallant Friend the Member for East Suffolk (Colonel Barne), subject, however, to a verbal alteration for which he himself was responsible—namely, in page 16, line 30, after "mentioned," to insert— Where an officer has been convicted by a civil court of an indictable offence he shall cease from the date of such conviction to belong to Her Majesty's Army. He cordially agreed with the Amendment, and trusted that the right hon. and gallant Gentleman would accept it.

SIR HENRY JAMES

thought it impossible that the Proviso could be accepted, as under its terms an officer who had committed the most venial act would be bound to be dismissed from the Army.

CAPTAIN MILNE HOME

said, he certainly had not been aware that such venial acts as instanced by the hon. and learned Member for Taunton were classed as indictable offences. He would not, after such information from so great an authority, press the Amendment.

Amendment, by leave, withdrawn.

SIR ALEXANDER GORDON

also wished to move an Amendment in the same terms as that of the hon. and gallant Member opposite (Colonel Barne), leaving out the words "or misdemean-our." He thought that an officer guilty of felony ought no longer to hold Her Majesty's commission, and was under the impression that in former years conviction of felony carried with it ipso facto dismissal of an officer.

THE CHAIRMAN

pointed out that the clause did not contain the word "misdemeanour," and that, therefore, it could not be proposed to omit it from the clause.

SIR ALEXANDER GORDON

complained of the noise in the House, which prevented him hearing the words of the Chairman. He begged to move, as an Amendment, in page 16, line 30, after "mentioned," to insert— Where an officer has been convicted by a civil court of felony he shall cease from the date of such conviction to belong to Her Majesty's Army.

SIR HENRY JAMES

remarked, that the Amendment, as amended, was one which the Committee ought to consider well before giving it their acceptance, because, by the clause, an officer convicted of felony, however wrongly, and even if that conviction should afterwards be set aside, would have to bear the penalty of dismissal from Her Majesty's Service.

Amendment negatived.

On the Motion of Sir WILLIAM HARCOURT, Amendment made in page 16, at end of Clause, by inserting— Provided, That no person shall be charged under this section in respect of any offence for which special provision is made in any other part of this Act.

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

Offences punishable by ordinary Law.

Clause 41 (Offences punishable by ordinary law).

SIR HENRY JAMES moved, as an Amendment, in page 16, line 35, to leave out the words "has committed," in order to insert the words "shall commit."

Amendment agreed to; words substituted accordingly.

MR. PARNELL

wished to move an Amendment which stood in the name of the hon. and gallant Member for Galway (Major Nolan), who was absent. The clause, which was very long and involved, gave power to try by court martial the offences of treason, murder, manslaughter, treason-felony, or rape committed in any place within Her Majesty's Dominions other than Gibraltar— Unless such place (whore the offence is committed) is, in the opinion of the officer who convenes the court martial (such opinion to be expressed in the order convening the court, and to be conclusive), more than 100 miles as measured in a straight line from any city or town in which the offender can, within a reasonable time, be tried for such offence by a competent civil court. He submitted to the Committee that the Proviso which he asked should be adopted was much more fitted to meet the requirements of cases contemplated by the Bill than the clause as it then stood. Within the United Kingdom it would, of course, always be possible to try an offender before a court of criminal judicature, so that no necessity existed for sending any person to be tried for a criminal offence by court martial. The case, however, would be different in India; but it would be met by the Proviso which he was about to ask the Committee to accept. The Saving Clause in the Bill gave great power and authority to the officer convening the court martial, which he (Mr. Parnell) submitted he should not possess. Practically, it gave him power to override the ordinary Civil Courts of the land by his own ipse dixit. The words of the clause he had already quoted made the officer judge both as to the distance and as to the time within which it was reasonable the offender should be tried. He did not think it right to leave such power in the hands of the officer convening the court martial, and therefore begged to move that, in page 17, line 1, after the words "courts martial" the words "if there is no possibility of trying the offender within a reasonable time before a competent civil court," be inserted.

SIR HENRY JAMES

thought that the hon. Member for Meath (Mr. Par- nell) had selected an inconvenient part of the section on which to raise his point. He (Sir Henry James), himself, shared the wish of the hon. Member to raise the question as to time and distance, but considered it better that it should be deferred until they came to the restrictive part of the clause, at which point he should be happy to support the Amendment of the hon. Member. As the clause stood, no person could be tried by court martial for these offences in the United Kingdom, and the point raised only applied to places beyond it.

COLONEL STANLEY

agreed with the principle of the Amendment of the hon. Member for Meath (Mr. Parnell), but thought it advisable to retain the present wording, until some better limitation could be introduced, which he would be perfectly willing to consider and accept; and on this point he was in hope of receiving the assistance of the hon. and learned Member for Taunton (Sir Henry James). The object of the portion of the clause to which the Amendment applied was to prevent the jurisdiction of the court martial being void ab initio.

MR. PARNELL

was willing to take the suggestion of the hon. and learned Member for Taunton (Sir Henry James), although he could not see how the question could be more suitably raised at that part of the clause to which he had referred. On the understanding that the hon. and learned Member would move a sufficient Amendment when that portion of the clause was reached, he (Mr. Parnell) was willing that the present Amendment should be withdrawn.

Amendment, by leave, withdrawn.

MAJOR NOLAN

proposed to add words to the clause, the effect of which would be to prevent any officer holding a court martial for the trial of the offences named, out of India, unless a competent Civil Court was at a greater distance than 100 miles from the place where the offence was committed. He thought this would make the Act somewhat more stringent as against the convening officer, to insert after the word "is," in page 17, line 26, the following words:— Situated in India or in any country in India under the protection of Her Majesty or in any place beyond the seas in which there is no civil judicature.

MR. PARNELL

had a verbal Amendment to suggest in line 24—namely, after the word "manslaughter," to insert the words "treason-felony."

COLONEL STANLEY

could hardly agree to the addition to the wording without some further consideration; but would make a note of the point, and bring it up on the Report.

SIR HENRY JAMES

trusted that the Government would take into their serious consideration the question of trying by court martial the offence of treason - felony, which, of all others, was the most difficult to deal with, and admitted of great latitude of definition.

Amendment (Mr. Parnell), by leave, withdrawn.

MAJOR NOLAN moved the Amendment of which he had just given Notice

COLONEL STANLEY

said, it was very difficult to get at the exact sense of a verbal Amendment at a moment's notice. At first sight, it appeared to him wiser to allow the clause to remain as at present; but he was quite willing to take a note of the suggested alteration.

MAJOR NOLAN

explained that his Amendment would prevent military courts acting for the trial of offences named in the clause in any of the Colonies, even if they were 100 miles away from a town in which civil judicature was in force, but that it would, not prevent them from acting in India.

SIR DAVID WEDDERBURN

thought the words of the Amendment not well chosen, and to involve a repetition, unless the term "British India" was employed.

COLONEL STANLEY

said, unquestionably, no officer would desire to try the crimes named in the clause by court martial; but it was necessary to make provision for the trial of such offences under certain circumstances by court martial—that was to say, when the trial by civil process would have to take place at a distance of more than 100 miles from the place where the offence was committed. He did not think it would be wise to limit the clause in the way proposed by the hon. and gallant Member for Galway (Major Nolan), but would carefully consider the point raised. In the meantime, he asked the Com- mittee to allow the wording to remain as at present, on the understanding that it should be looked into on Report.

Amendment, by leave, withdrawn.

SIR HENRY JAMES

said, in order to fulfil his promise to the hon. Member for Meath (Mr. Parnell), he would propose the Amendment standing in the name of the hon. and gallant Member for South Ayrshire (Colonel Alexander) which had not been moved. The offences named in the clause were not of a military, but of a civil character—primâ facie, therefore, they should be tried by a Civil Court. But the Proviso in the clause gave absolute discretion to the officer convening the court martial to say—first, whether there was a competent tribunal within 100 miles, and from the exercise of that discretion there was no appeal; secondly, it was left to his discretion to say whether the person could be tried within a reasonable time. He thought that considerable discussion was desirable before the Proviso was agreed upon in its present form. With relation to what was the term "reasonable time" used? One officer might say—"I wish this regiment to march; I cannot try you before the regiment marches." Therefore, the individual could be tried in a reasonable time with relation to the marching of the regiment. Another officer might say—"I cannot try you until the health of the regiment permits it;" in that ease, the term "reasonable time" would be used with relation to the health of the regiment. In this way, power was given to the officer to supersede the jurisdiction of the Civil Courts, and to say—"I think the offender cannot be tried within a reasonable time; therefore, he shall be tried by court martial;" and, of course, there were circumstances under which that power might be exercised. All this was to apply outside the United Kingdom, and was, in fact, an extension of the Mutiny Act to all the Dominions of the Crown. This great extension of power claimed for, and to be placed in the hands of, a military officer, to shut out the jurisdiction of the Civil Courts of the country, he felt bound to oppose, and should, therefore, do all in his power to strike out the Proviso. He moved that all the words from the word "in," in line 26, down to "conclusive," in line 28, be struck out,

MAJOR O'BEIRNE

thought that the time within which an officer should be tried ought to be accurately fixed. Twenty years ago, a case had occurred of an officer being kept under arrest for six months, although the authorities to whom his case was referred were only 300 miles from the station; but they did not care to interfere during the hot weather in India. Again, an officer had been kept four months under arrest in Dublin, pending the settlement of the question as to whether he should be brought before a court martial or not.

MR. RYLANDS

thought the Committee must have perceived that very serious matter had been introduced into the discussion. The Committee could not be expected to pass the clause in its present objectionable state; and he, therefore, appealed to the right hon. and gallant Gentleman to postpone it. He could not agree to allow the clause to pass out of the hands of the Committee until it had been put into proper shape. He did not doubt the intention of the Secretary of State for War to prepare another clause; but the Committee ought to see that it was entirely changed, and consider well the Amendment to be made before it was passed. He therefore suggested that the clause should be postponed, and that before the Committee met again the right hon. and gallant Gentleman should state the exact words which they were expected to adopt.

COLONEL STANLEY

hoped that the Committee would see that the Government were anxious to prevent any possible abuse under the clause, which, for some reasons, he should be glad to see amended. The best plan, in his opinion, would be to leave out all the words from the word "in," in line 26, down to "conclusive," and also to leave out the words "within a reasonable time," and he would bring up the words on the Report to make the meaning-more clear.

GENERAL SIR GEORGE BALFOUR

said, that the law in India on this point was pretty well settled. It was the custom there from time immemorial to send at once for civil trial all cases where the offence had been committed within 120 miles from the Civil Court of the chief Presidency towns of Calcutta, Madras, and Bombay. The present Bill was pro- posed to alter the distance from 120 to 100 miles. No reason was given for this trifling change. It had, however, the effect of changing a long-established course of action, and one that had been introduced after many difficulties. Beyond 120 miles the trials for offences which would within 120 miles be carried on before a Civil Court must be conducted by courts martial, and hitherto very fairly done. He trusted that the Secretary of State for War would consult those who were acquainted with the Indian practice in determining what the new clause should be.

SIR HENRY JAMES

pointed out, that if the Proviso were allowed to stand in its present form, it would, primâ facie, at once give military jurisdiction in cases of murder and treason, and he could not think that such was the intention of the Committee.

MR. PARNELL

said, the limit of 100 miles from the place of civil jurisdiction was a bad one, and it would, therefore, be better to leave that an open question also. He suggestsd that all the words after "Gibraltar," in line 26, should be left out, in order to insert the words— Unless such place is so situated that there is no possibility of trying the offender before a competent civil court; and the right hon. and gallant Gentleman could then amend that on Report, if necessary. The proposed alteration would get rid of the limit of distance, and the authority of the convening officer, as well as the objectionable sentence with regard to the "reasonable time" within which an offender could be tried, while any securities that were found to be required could be added on the Report.

MR. HOPWOOD

thought the word "civil," as contrasted with "military," made use of in the clause, was not the fittest that could be chosen. This criticism was merely verbal; but it was right to use accurate language if it could be found.

MR. STAVELEY HILL

replied, that by the Definition Clause the words "civil courts" applied to any court whatever.

Amendment agreed to; words struck out accordingly.

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

Redress of Wrongs.

Clause 42 (Mode of complaint by officers).

SIR ALEXANDER GORDON moved, as an Amendment, in line 41, page 17, after the words "Commander-in-Chief," to insert the words "in order to obtain justice."

Amendment agreed to; words inserted accordingly.

SIR ALEXANDER GORDON moved, as an Amendment, in lines 41 and 42, to leave out the words "who shall cause his complaint to be inquired into," in order to insert the words "who is hereby required to examine into such complaint."

Amendment agreed to; words substituted accordingly.

SIR ALEXANDER GORDON moved, as an Amendment, in page 18, line 2, after the word "thereon," to add these words— In India any such officer may complain to the Commander in Chief in India, who, if he is unable to give such officer the redress to which he may consider himself entitled, shall forward the complaint to the Commander in Chief to be disposed of as above directed. In some of the Presidencies of India, an officer was allowed to complain to the Commander-in-Chief; but in others, an officer would be obliged to complain to a civil authority. The object of the Amendment was that an officer who felt himself aggrieved should have the right to complain to the Commander-in-Chief of the Army. This right was possessed by the officers in China, and was, indeed, acknowledged all over the world.

COLONEL STANLEY

thought that Subsection 3 of Clause 170, page 98, which ran thus— Any officer belonging to Her Majesty's Indian Forces who thinks himself wronged by his commanding officer, and on duo application made to him does not receive the redress to which he may consider himself entitled, may complain to the Commander-in-Chief in the Presidency," &c. would carry out the principle desired by the hon. and gallant Member to be established.

SIR ALEXANDER GORDON

remarked, that this was a good illustration of the answers received in the House of Commons, as well as of the way in which the Bill had been prepared. The clause referred to by the right hon. and gallant Gentleman applied to officers of the Indian Army alone.

SIR WALTER B. BARTTELOT

agreed with the proposal of the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon), and hoped that the right hon. and gallant Gentleman would see his way to put the words into the Bill.

GENERAL SIR GEORGE BALFOUR

hoped the right hon. and gallant Gentleman the Secretary of State for War would take up the point, and see what could be done to settle the matter; at the same time, he trusted that the complaints of officers would not be allowed to come through the Council at home, because they would do all they could to prevent redress being given. The quotation of the right hon. and gallant Gentleman referred entirely to the Indian Forces; but the Committee had to deal with that portion of the English Army serving in India, and, in fact, subordinate to the Indian authorities.

SIR JOHN HAY

trusted that the Amendment would be accepted by the right hon. and gallant Gentleman the Secretary of State for War.

MR. RYLANDS

considered the Committee had reason to complain that the right hon. and gallant Gentleman had referred, in answer to the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon), to a portion of the Bill which had no relation whatever to the point under discussion. The portion of the Bill referred to concerned the Indian Army alone, and the statement of the Secretary of State for War was, therefore, unintentionally, misleading. He (Mr. Rylands) was the more surprised at this, because at the side of the right hon. and gallant Gentleman sat the right hon. and learned Gentleman the Judge Advocate General, who, from his great knowledge of this subject, should have prevented his falling into that error.

COLONEL STANLEY

said, the question was, how to deal with the appeal of officers, as regarded the commanding officers in India? Either the officers were officers of the Indian Forces, or they were officers of Her Majesty's Forces serving in India. If they were officers of Her Majesty's Forces serving in India, they had a right to appeal under the present clause—42; but if they belonged to Her Majesty's Indian Forces, then their appeal lay under Clause 170.

GENERAL SIR GEORGE BALFOUR

referred to the cases of officers in India whose complaints had lately been subjected to inquiry by a Select Committee, on which the hon. and gallant Baronet the Member for West Sussex (Sir Walter B. Barttelot) and the right hon. and gallant Baronet the Member for Stamford (Sir John Hay) and himself had served. It was there proved most conclusively that though the Commander-in-Chief at home had been made acquainted with the complaints of certain Indian and Royal Artillery officers, yet did not consider himself justified in interfering; and he (Sir George Balfour) considered it a very proper thing that he should not have directly interfered in a case of complaints which appertained to the Indian Government. The question as to the mode of appeal for officers in India was by no means clear, and he thought that it should be provided for at the present opportunity. The Bill did not, however, do so in a satisfactory form. The kinds of complaints that might be, indeed, the complaints that were under the consideration of the Select Committee were of a character far beyond the powers of any military officer to settle. They affected the Indian Government both in India and in England; and, therefore, the Bill ought to provide for all such cases.

MR. PARNELL

wished to understand the position. Had the Amendment of the hon. and gallant Gentleman (Sir Alexander Gordon) been agreed to by the Secretary of State for War?

COLONEL STANLEY

replied, that he had not agreed to it, for the reason that he understood it to be already provided for by the Bill. The officers of the Army serving in India would not lose their right, under Clause 42, to appeal to the Commander-in-Chief. With regard to the officers of the Indian Forces, their mode of appeal was stated in Clause 170, as he had already pointed out; and their ultimate appeal lay to the Governor of the Presidency, who had power, if he thought it right, to forward the application to the highest quarter.

MR. HOPWOOD

inquired to which Commander-in-Chief the appeal lay? It had been answered, to either of them; but that could not be. The Commander-in-Chief in India might have power to remedy the grievance of an officer; if so, that was only saying that the appeal should be made to him in the first instance; but if that was not the case, it was saying that the appeal should lie to the Commander-in-Chief in England. It was this appeal which was desired. It ought to lie in all cases from officers serving in the Queen's Forces in India to the Commander-in-Chief in England.

GENERAL SIR GEORGE BALFOUR

reminded the Committee that in India, where the Government was supreme, no power which any Commander-in-Chief possessed, either in India or in England, could deal with. No military authority, however high, could go beyond that of the Viceroy, unless to thrust upon the Field Marshal Commanding-in-Chief a right of interference with the Government of India far in excess of the functions confided to him under the Order in Council of 1870. It was, therefore, necessary to provide that the complaints of officers should in some way or other not only reach the Commander-in-Chief in England but also the two Secretaries of State for India and War. He therefore hoped that the Secretary of State for War would take proper means to redress the constantly-recurring grievances of officers serving in India by insuring a channel of communication through which the claims and complaints might be subjected to the Cabinet.

SIR JOHN HAY

said, according to Clause 42, an officer might complain to the Commander-in-Chief in India, who would send the complaint to the Secretary of State for India. The officer would then find himself in difficulty between the right hon. and gallant Gentleman the Secretary of State for War, and the Secretary of State for India. What was wanted was that the Com-mader-in-Chief in India should receive the officer's complaint, and forward it to the Commander-in-Chief in England, who should take care that no disputes arose between the great Departments of State, owing to which the grievances of officers might remain unredressed. It was true that, under Clause 170, the officers of the Indian Army had a right of appeal which was now sought for the officers of the English Army; and it was asked that such appeal should come home to the Commander-in-Chief here, and, eventually, that the Secretary of State for War should place it before Her Majesty.

MR. MARTEN

pointed out that Clause 180 expressed the Commander-in-Chief to mean the Field Marshal or other officer commanding-in-chief Her Majesty's Forces for the time being. The present clause, therefore, would provide for the complaint going to the Commander-in-Chief—that was to say, under the present system, to the Field Marshal Commanding-in-Chief Her Majesty's Forces for the time being.

SIR ALEXANDER GORDON

said, that the views of the hon. and learned Member for Cambridge (Mr. Marten) did not at all meet the case. The section, quoted from page 98, applied solely to the officers of the Indian Service, who had nothing whatever to do with the British Service, and whose complaints, therefore, it was proper should be settled by the Government under which they were serving. But the Queen's officers should be dealt with as they would be in China or in North America. He felt sure that if the settlement of the question was put off, the Committee would be told, when they reached the clause referred to, that it had nothing to do with the Queen's officers; moreover, he wished it to be understood that he had not put down this Amendment without well knowing the cases to which it would apply. Officers serving in India made complaints which went up to the Presidency, where they were dealt with as Government questions—the civilians disposing of military matters which ought to have gone to the Commander-in-Chief. That was the grievance of the Army. The officers desired to be protected in India as they were in other parts of the world. When these complaints came before the Secretary of State for War, the reply was that he could not interfere in matters relating to India; and when they came before the Secretary of State for India, his reply was that he knew nothing about them. The remedy desired, therefore, was that officers serving in India should have the opportunity of bringing their grievances to the knowledge of the Commander-in-Chief in England, and he hoped the right hon. and gallant Gentleman would agree to the insertion of the words proposed.

COLONEL STANLEY

agreed with the principle that an officer, in making an appeal, should not be shuttle-cocked about; but, as it was laid down, officers serving in India came under Clause 42, and had their right of appeal accordingly, it mattered not whether their complaints went to the Commander-in-Chief or the General Officer commanding, both of which officers were but the channels through which the complaints were forwarded. If he found that his impression was wrong, and that the hon. and gallant Member for East Aberdeenshire was correct in the view he had taken, he would agree to the insertion of the words on Report.

SIR ALEXANDER GORDON

said, he was perfectly satisfied with the statement of the right hon. and gallant Gentleman; and, therefore, he should withdraw the Amendment.

Amendment, by leave, withdrawn.

MR. PARNELL

said, there appeared 'to be some confusion between the hon. and gallant Baronet the Member for East Aberdeenshire (Sir Alexander Gordon) and the Secretary of State for War. The argument of the hon. and gallant Baronet came to this—that although the officer in India—serving in India—nominally retained his status and right of appeal under Clause 42, yet, owing to the distance of England from India, it was impossible for him, practically speaking, to make this appeal within any reasonable time; and although there was a Commander-in-Chief in India, the Commander-in-Chief at home did not consider himself competent to interfere in the matter. Then came the question between the different Secretaries of State—the Secretary of State for India, and the Secretary of State for War. The Secretary of State for War did not consider himself properly qualified. This appeared to him (Mr. Parnell) to be the argument of the hon. and gallant Baronet. Of course, if he only desired to reserve the technical right of an officer in India to appeal, he would have gained his purpose by the promise made by the Secretary of State for War.

MAJOR NOLAN

expressed his regret that some of the clauses in the Bill were not dovetailed. The case was made much worse for the soldier than for the officer. But the Government had introduced into this clause great practical changes. They read very well; but he doubted whether they would work well. There was, for instance, the case of an officer making a complaint against another officer—affecting the character of another officer—or of a soldier making a complaint. What was in the mind of the draftsman of this Bill? Clearly, his object must have been to discourage complaints. The old Articles of War were in the other direction—they encouraged complaints, so as to leave a safety-valve. They gave an officer or a soldier full permission to bring complaints before their superior officer, if they felt themselves aggrieved. There was no penalty on an officer bringing a complaint and failing in it, though there was on the soldier; but there was this provision—that if he brought a complaint before the regimental court—if he appealed to a higher court—he might be punished, if the appeal was found to be frivolous and groundless. The same was the case exactly with regard to the soldier. He thought there was a very great change being introduced by this penal clause, thus adding to the old Articles of War. They now said to a man who made a complaint—"If you make a false statement, you are liable to be tried." At first sight, that seemed fair; but what about the working of it? The man complaining would differ in some matter of fact from his commanding officer; there was nearly always a difference as to a matter of fact, and if there was a difference, it might fairly be said to "affect the character" of somebody. It might, for instance, affect an officer's military character to say he lost his temper, or something of that sort; and in the majority of cases of serious complaint they would have some statement affecting the character of an officer. What he believed would happen under this new Act was this—and it was designed, he was satisfied, for the purpose—when an officer made a complaint, instead of pressing it against his commanding officer, he would be put on his trial, and the commanding officer would be told he must prove the charge against the junior officer, who would be told he had made a false charge. The effect of this alteration, instead of assisting complaints, would land the junior officer in a trial in which he would be charged before a court martial for making a false statement. The superior officer would not know that he had made a false statement; but he would say we must investigate, in the same way, this fact; and in that way the junior officer would be placed on his trial. Perhaps, in the great majority of cases, the officer would not be tried; but if one was tried out of 50 who made complaints, it would be quite enough to establish the grievance which he had pointed out, and to stop the great bulk of complaints. It would stop the safety-valve which existed at present—the right of making fair and legitimate complaints of grievances. He thought the right hon. and gallant Gentleman ought to point out why this clause was being introduced. They were removing by this clause the soldier's only safeguard. No soldier under the clause could make a complaint without being made liable to punishment. They might reply—"Well, let him make no false statement." He believed, in the majority of cases, both sides were in the right, and that the facts were as they stated them; and the result would be that a man would be tried for making false statements when, in fact, he had told the truth. When they came to Clause 43, he would show how very much worse the soldier's case was made than it was at present. It behoved the Secretary of State for War to show to the Committee why he had departed from the old Act. He should, in page 18, line 2, move to leave out all the words after "thereon," to the end of the clause.

MR. STAVELEY HILL

said, the Committee upstairs had agreed unanimously to the clause. The object of the insertion of the words was clear. It was to prevent false charges. The Committee deemed it proper to make this a specific offence. Let him point out that the words were "knowingly making a false statement," and concealing any material fact. He asked whether "knowingly making a false statement" was not a matter which should be punished?

MAJOR O'BEIRNE

, in reply to the statement of the hon. and learned Gentleman opposite (Mr. Staveley Hill), wished to say that the Committee gave hardly any time at all to the consideration of the clause. They were unanimous, for the simple reason that they were helpless, and the clause was hurried through from beginning to end, and was not discussed at all.

MR. STAVELEY HILL

said, that if the hon. and gallant Member for Ler-trim would look, he would find that the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) took a division on another part of the clause.

MAJOR NOLAN

wished to point out that his hon. and gallant Friend (Major O'Beirne) and the hon. and learned Gentleman opposite (Mr. Staveley Hill) differed as to a matter of fact in the Committee of which they were Members. This was exactly a point on which an officer would be tried. If a junior officer put the statement in writing, he would probably be tried for making a false statement. The provision in the new Act was a dangerous one. Here they had two hon. Members differing as to a matter of fact; but under this Act the mode of investigation would be to try the complainant. This was the dangerous feature to which he most strongly objected.

COLONEL MURE

said, that hon. Gentlemen who complained of this clause were the same who complained of the "Devil's Clause." Offences of this kind must be punished; and if that were so, surely they ought to make the matter clear. He hoped the hon. and gallant Gentleman would give way.

COLONEL STANLEY

rose to explain that it was not a false statement as to fact, but false statements affecting the character or wilfully suppressing any material facts. As to matters of fact, no court in the world would convict a man for a statement, unless it was convinced of the intention of the person making the statement.

MR. HOPWOOD

said, the Committee was discussing a very important point—the possibility of the accuser being brought to trial. He agreed, on the face of the thing, "knowingly making a false statement," and "wilfully suppressing facts," were strong terms; but, taken in connection with the words with which they were placed in juxtaposition, "by himself making complaint first," something like a menace was held out, or a warning was given to the man not to make any complaint at all. He would put a case which frequently occurred at law. A man made a charge against another, and he was tried. The accuser failed to substantiate the charge. The party accused could retaliate; but how? He might indict the man for perjury; but the law said—"Oh, no! we cannot take merely your counter-statement against that of the accuser. You must have two witnesses as to the fact, proving his statement to be false and wilful. Your mere affirmation that the charge made against you is false is not sufficient to enable us to convict him of perjury. If you wish to show that the charge was the result of more vindictiveness, you must strengthen that by at least two witnesses, and we require two witnesses in support of your statement."

SIR ALEXANDER GORDON

said, he wished to support the objection taken by the hon. and gallant Gentleman (Major Nolan). They were, no doubt, re-enacting a clause which already existed; but they were putting a very important rider to it—a rider which said to the man bringing the charge—"Take care what you are about. You will be tried by court martial." That was a most serious thing to say, by Act of Parliament, to a man who had a grievance. He had often heard complaints of soldiers, and there was always a tendency on the part of commanding officers to prevent men making complaints. A commanding officer always disliked a man coming before him to make complaints, or before the general; but it was the duty of every general to see that every soldier had the right of complaint, and that he was not punished if he made it properly. He had ordered a man to be tried for making improper complaints, and he thought the case was already fully provided for. Therefore, he thought it would be better to omit the clause altogether, as it was useless.

MAJOR NOLAN

said, there was one point to which he wished to allude, and that was with reference to the evidence given before the Committee on the Mutiny Act. He thought, if anyone looked at the list of witnesses there, he would see that the people who gave evidence were those who, in many cases, had frightful bothers with complaints. He did not think the Committee had one witness of the class of men who complained. The Committee had been hearing one class of witnesses; and it was rather better, he thought, for the Committee of the Whole House to hear all sides of the story. The safe right of complaint was a safety-valve for discontent. Abolish, or nearly abolish, that right, and they would remove the safety-valve. The men would interpret the clause as meaning that, however true, the complaints were not wanted.

MR. STAVELEY HILL

wished to read a few lines from the evidence of the Commander-in-Chief. "I think it a great pity," said His Royal Highness, "that any restriction should be put upon the right of complaint." Now that it was supposed an attempt was made to interfere with that right, he wished to remind the Committee of the evidence given on that head by the Commander-in-Chief.

MR. RYLANDS

said, that it might be perfectly true this statement was made; but there was nothing to justify this extraordinary change in Military Law. Under the Articles of War, there was every encouragement given to complaints. The object had been not to sit on the safety-valve in dealing with the Army. The right of complaint—the free exercise of the right of complaint—was the safety-valve; and, instead of leaving it in the way in which the Articles of War placed it, they attached to this clause, which provided for the redress of grievances, a warning which no human being could doubt would be understood by junior officers and soldiers as meaning that if they brought complaints against their superior officers it would be at their own risk. He should resist the change as altogether unwise.

MR. PARNELL

said, as the proceedings of the Committee had been referred to, he, as a Member of that Committee, thought it right to say that they should not rely too much on them. They were very much hurried, and if hon. Members would study the Report of the Committee, he thought they would find that the Report was drawn up in such a manner that they ought not to attach any great importance to the conclusions arrived at. They had none except official witnesses, and very few of those. They were Horse Guards' witnesses. So far as he was concerned, he agreed to everything, because he saw there was no use pro- posing. They were put to a task which could not be performed in two or three Sessions.

MR. HOPWOOD

said, their opposition to the clause was so rooted taht he thought it would be well if the question were taken into consideration by the Secretary of State for War. At that hour (15 minutes to 7) the clause could not be disposed of. The clause proposed, in effect, to abolish a right which they were all anxious to secure to the men.

SIR JOSEPH M'KENNA

said, he thought this provision gave a complete discouragement to any man making a complaint. He had had a good deal to do in civil matters with receiving complaints, and he could assure the Committee it was very difficult to get men to make complaints, even where they were aggrieved; and where the discipline of the Service in which they were engaged was involved, the difficulty always was to get men to impeach authority, even when right. A man had a great deal to contend with before he made up his mind to bring a charge against a superior. If, in addition to the natural reluctance to accuse a superior, he had to labour under the reflection that, when lie did bring a charge, if he did not prove the charge, he would be liable to imprisonment in addition to the imputation that he brought a false charge, the proper exercise of the right of complaint would be seriously curtailed. He knew of one case where his own judgment went wrong. He thought a man brought a false charge; but after wards the charge proved to be true, and it would have involved a serious injustice if the man, immediately after bringing the charge, were tried for bringing it forward. A case occurred to him at the moment. A man made a charge against a respectable party placed over him in authority. It was apparently so absurd that he did not investigate it, especially as the party bringing the charge made a mistake in one very important point, which would seem to destroy his veracity. The charge, however, was true, for all that—and was the man's whole evidence to be discredited?

And it being ten minutes before Seven of the clock, the Chairman reported Progress; Committee to sit again this day.

And it being now Seven of the clock, House suspended its sitting.

House resumed its sitting at a quarter after Nine of the clock.