§ Order for Committee read.
§ MR. CHILDERSI beg to move, Sir, that you do now leave the Chair. I should not have done more than make that Motion if it had not been for the Notice given by the hon. and gallant Member opposite (Colonel Alexander), in the early part of the evening, of his intention to oppose the Motion for going into Committee. I have not the slightest idea what the motive of the hon. and gallant Gentleman is in taking that course. The Bill is a very simple one, and it has been in print for some time. It contains certainly two important clauses—one to enable the Chelsea Commissioners to grant certain pensions, in regard to which I have been interrogated several times in the course of the present Session; and the other to enable the Crown to increase the Reserve by allowing men, after their 12 years' engagement, to volunteer for four years more into a second Reserve. All the rest of the Bill relates to matters of detail in connection with the Scheme approved this Session, or improving the provisions of the Army Discipline and Regulation Act. I hope, therefore, that the hon. and gallant Gentleman will not persist in his opposition to the measure at this stage, believing, as I do, that when the House goes into Committee, I shall be able to prove that there is no real ground of objection to any of the proposals contained in it. I promise him that when we come to any clause he objects to, I will explain the purpose of it as fully and as candidly as I can. I hope he will allow the House to go into Committee.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Childers.)
436§ COLONEL ALEXANDERsaid, it was with considerable surprise that he had first perused the provisions of the Bill now before the House. When, two years ago, after labours only exceeded by those of the present year, the House at last succeeded in passing the Army Regulation Act, it was imagined that their labours had terminated for ever. They were doomed to find, however, that like those of Sisyphus they were eternal. The right hon. Gentleman the Secretary of State for War had placed in their hands a Bill which really consisted of three parts and 53 clauses. The contemplation of the prospect before them was eminently discouraging; and he looked back with regret to the halcyon days when they were able to pass 100 clauses of the Mutiny Act in the course of a single Sitting. Two years ago it was proposed to substitute for the Mutiny Act a consolidated Code of Army Regulations, and it was imagined that that Code contained, at least, the element of permanence. They relied upon the judgment of Sir Henry Thring, the eminent draftsman, for rendering the provisions of the Act perfect; and they were told that it was impossible for the ingenuity of man to contemplate a crime which would not be dealt with and punished by the Act of 1879. Yet, notwithstanding that declaration by so eminent a draftsman, he found that the Bill now before the House contained many additions to, and alterations of, the Act of 1879; and some of them, in comparison with the provisions of the Act of 1879, were distinctly disadvantageous to the British soldier. At the request of the right hon. Gentleman the Secretary of State for War he would withdraw his opposition to the Motion for going into Committee; but when the Bill went into Committee he should propose certain alterations in some of the clauses, which he hoped would meet with the assent of the right hon. Gentleman, and with that of hon. Members on both sides of the House. Before he sat down he wished briefly to make good his assertion that where the Bill erred it erred on the side of excessive severity. He would take, for instance, the important clause which dealt with the composition of a general court martial. This was an important court, because, with the exception of what was known as a field general court martial, an ordinary general 437 court martial was the only court which had power to sentence a prisoner to death or penal servitude. In the English Army, following the customs of the Swedish, Dutch, and German Armies, the general court martial originally consisted of 13 members; but in the Army of James II., by the Articles of War, the court was made to consist, according to the French practice, of not less than seven members. From the passing, however, of the first Mutiny Act of 1689, in the Reign of William III., down to so recent a period as 1868, the minimum number of members of a general court martial in the United Kingdom was fixed at 13. In 1868 an important alteration was made and the minimum number of members composing a general court martial was fixed in the United Kingdom and the East Indies, Malta and Gibraltar, at nine; for Bermuda and Nova Scotia, at seven; and in any other Colony or place out of the Queen's Dominions, at five. An important provision was also added that no sentence of death in any circumstances should be passed, except with the concurrence of two-thirds of the members composing the court. In the Act of 1879 the minimum of nine members was continued for a general court martial, except when, in the opinion of the officer convening the court, that number in the interests of the Public Service was not available, in which case the general court martial was to consist of not less than five members. But now, what did they find in the present Bill? The word "nine" had no place in it at all, and it was simply provided that the general court martial should consist of not less than five members. Perhaps the right hon. Gentleman would ask him to read to the end of the sub-section, and would point to the provisions which forbade any officer below the rank of captain from sitting as a member of a general court martial; but he had yet to learn that a prisoner would derive any consolation from being sentenced to death by a captain instead of a lieutenant. The right hon. Gentleman also said that five was the minimum number of members composing the court, and that, as a general rule, the number of members composing the court would exceed that minimum. That was quite true; but he had had considerable experience in acting as Deputy Judge Advo- 438 cate before general courts martial, and he could remember more than one case in which the actual number of members composing the court was, through sickness and through other causes, reduced to a minimum. That was not very material in the days when 13 formed the court; but they were now making a very small minimum number of officers as the composition of a general court martial. In point of fact, they were fixing the composition of a general court martial, which would have power of life and death, at precisely the same number as that which, only two years ago, they fixed for the inferior tribunal of a regimental court martial, whose powers were limited to sentencing a prisoner to 42 days' imprisonment with hard labour. He also found that they were going to allow four members out of five composing the court to pass a sentence of death, and three out of five to pass a sentence of penal servitude. Then, again, he found that, by Clause 48 of the Bill, the Governor of a Colony or the officer commanding the troops out of the Queen's Dominions was authorized to declare from time to time that it was necessary, either in consequence of the imminence of active service or in consequence of the recent existence of active service, that the troops under his command should be subject to the Act of 1879 precisely as if they were upon active service. In other words, it was provided that a soldier should be liable to suffer the penalty of death for offences which in ordinary times, would only have been visited by a few months' imprisonment. That was one of the results of the total abolition of corporal punishment, and that was not the last time that they would have to deplore the consequence of yielding as they did in 1879, just previous to a General Election, to the popular clamour for the abolition of corporal punishment. He had never been an advocate of excessive corporal punishment; and it would be remembered that, on a certain memorable occasion, he advised his right hon. and gallant Friend (Colonel Stanley), the then Secretary of State for War, to mitigate the severity of the punishment, and his right hon. and gallant Friend was pleased at the time to say that he would act on his (Colonel Alexander's) advice, and that he would reduce the punishment from 50 to 25 lashes. But he did 439 protest against the spurious humanity which strained at the gnat of corporal punishment and swallowed without compunction the camel of capital punishment.
MR. OSBORNE MORGANsaid, he was glad to see that it was not intended to re-open the question of corporal punishment. The Act of 1879 was necessarily only a tentative Act; and, in consequence of the time occupied in the discussion of the question of corporal punishment, many parts of the Bill were passed without the consideration and discussion which their importance required. It had been found, since the Act came into operation, that there were certain defects and omissions in it which tended to produce a miscarriage of justice. No one knew that better than himself, as he had been charged with the administration of the Act of 1879. The object of the present Bill was simply to remedy those defects and omissions; and he would call the attention of the House to one of them which had already been referred to by the hon. and gallant Member for South Ayrshire (Colonel Alexander)—namely, the composition of general courts martial. The Act of 1879prescribed a certain minimum number of officers both for district and general courts martial, and then allowed that minimum to be reduced by the general officer who convened a court of inquiry, where the larger number were not, having due regard to the Public Service, available; but the fact had to be stated in the order convening the court. The proceedings of several courts martial had been rendered invalid in consequence of the later requirement not having been properly complied with. The object of the Bill was to reduce the minimum number of officers composing the court, and to make the number uniform in every case; but, on the other hand, it was proposed to raise the standing of the officers composing the court. The alteration was a most desirable one, and he hoped the hon. and gallant Member would not persist in his objection to it. He could assure his hon. and gallant Friend that as soon as they got into Committee the Government would be happy to offer every explanation in their power. It was hardly necessary to remind his hon. and gallant Friend that at that period of the Session it would be quite impossible to pass the Bill at all 440 unless the House was disposed to accept the guarantee of the Government that the changes proposed would be advantageous to the interests of the Army.
§ MR. O'DONNELLsaid, he understood that the objection of the hon. and gallant Member for South Ayrshire (Colonel Alexander) was to the very small majority of a very small court by which important sentences—such as death and penal servitude—could be passed under the Bill as it stood. He hoped the question was one on which the Government were open to persuasion, because, of course, although the argument was very strong that at that time of the Session they could not afford to devote to the measure a very scrutinizing spirit, still it was desirable that some consideration should be given to points of this kind.
§ MR. CHILDERSdid not understand that the point raised by the hon. Member for Dungarvan (Mr. O'Donnell) was one of those which had been raised by the hon. and gallant Member for South Ayrshire (Colonel Alexander).
§ Question put, and agreed to.
§ Bill considered in Committee.
§ (In the Committee.)
§ Clauses 1 to 5, inclusive, agreed to.
§ Clause 6 (Punishment of fraudulent enlistment of militiaman).
§ MR. CHILDERSsaid, he had a verbal Amendment to move in line 21—namely, to substitute the words "punishable for" for the words "guilty of."
§
Amendment proposed,
In line 21, to leave out the words "guilty of," in order to insert the words "punishable for."—(Mr. Childers.)
§ Question, "That those words be there inserted," put, and agreed to.
§ Clause, as amended, agreed to, and ordered to stand part of the Bill.
§ Clauses 7 to 13, inclusive, agreed to.
§ Clause 14 (Removal of doubts as to pensions of army reserve men).
§ MR. CHILDERSsaid, it would be necessary to make an addition to the clause, for the purpose of incorporating a former Act.
§
Amendment proposed,
In line 23, to add the words "and Sections 4, 5, and 7, of the Army Discipline and Regulation (Annual) Act of 1881."—(Mr. Childers.)
§ Question, "That those words be there added," put, and agreed to.
§ Clause, as amended, agreed to, and ordered to stand part of the Bill.
§ Clauses 15 to 19, inclusive, agreed to.
§ Offences in relation to Courts Martial.
§ Clause 20 (Amendment of s. 28 as to power of court martial over contempt).
§ COLONEL ALEXANDERsaid, he thought this clause would be found to be quite unworkable. Under the Act of 1879 a witness might be sentenced by a court martial for contempt of court to imprisonment not exceeding 21 days' hard labour. The present clause authorized the court to sentence a prisoner for using violent or threatening language to the same punishment of 21 days' imprisonment with hard labour. But the use of threatening language to the members of a court martial was one of the greatest military offences a prisoner could commit; and it had always been the practice, up to the present time, to try a prisoner so offending by general court martial. He recollected an instance, when he was himself acting as Deputy Judge Advocate, where a prisoner was tried for using abusive words. He was tried by an inferior court; and on being asked if he had any objection to make to the composition of the court, he said he objected to the whole lot, and he used most violent and threatening language. For that offence he was subsequently tried by a general court martial and sentenced to two years' imprisonment with hard labour. It was quite evident either that such a term of imprisonment was too great, or that 21 days' imprisonment for the same offence was much too little. He thought it would be much better if the right hon. Gentleman would allow the clause to be struck out altogether.
MR. OSBORNE MORGANsaid, the clause simply gave power to the court by which a man was tried to sentence a prisoner who was guilty of contempt of court to 21 days' imprisonment; but, if it were considered necessary, the contempt committed having been of a serious character, there was power to convene another court. Hitherto, in every case of contempt, however slight, it had been necessary to convene a second court for the trial of the second offence. That practice had been found 442 to be highly inconvenient, and there had occasionally been great difficulty experienced in summoning another court. This clause, in such a case, gave power to the court against whom the contempt was committed to sentence the offender to some punishment.
§ COLONEL ALEXANDERwished to point out that a punishment of 21 days' imprisonment with hard labour might, in many cases, be wholly inadequate to the offence.
MR. OSBORNE MORGANsaid, that, in the event of the offence being of an aggravated nature, of course another court martial would be summoned. It was only where the offence was slight that power was given by the clause to the same court to try it.
§ SIR WALTER B. BARTTELOTthought, if the object of the clause was to amend the provisions of the Mutiny Act, power might be given to the court to award a far higher punishment than 21 days' imprisonment with hard labour. Such a punishment seemed to him to be absurd, for the grossest conduct which could be committed by a soldier when before a court martial. As a rule, when an offence of this character did take place, it was of a violent and aggravated character; and he thought the clause might be amended so as to extend the punishment inflicted without rendering it necessary to summon another court martial.
§ MR. CHILDERSI will consider the point raised by the hon. and gallant Member before the Report is brought up. I must remind him, however, that it would be introducing a clause very much against the prisoner. We have thought it better to leave the Act as it stood, with the single exception of giving the same court the power of trying the case. The clause does not restrict the power of a second court martial. I think the Committee would hardly venture to allow a court martial, not specially summoned for the purpose, to inflict a heavy punishment.
§ MAJOR-GENERAL BURNABYthought the clause was one which was worthy of further consideration. He remembered a case where a prisoner in the Army, being tried for some trifling offence, had his cap removed from him, because he would persist in throwing it at the President or members of the court. On another occasion, a prisoner got away from the 443 escort and struck a member of the court. He did not think that for such offences 21 days' imprisonment was sufficient punishment; but, of course, a general court martial might be convened for the purpose of trying the second offence. He understood that the present clause was only intended to meet minor offences, when they did occur. But, unfortunately, they seldom did occur, because when a soldier lost his temper he generally went in for some gross act of insubordination.
MR. OSBORNE MORGANsaid, the hon. and gallant General was quite right. It was only intended that the present clause should deal with minor offences.
§ Clause agreed to.
§ Clauses 21 and 22 agreed to.
§ Courts Martial.
§ Clause 23 (Amendment of ss. 47 & 48, 51 & 53, as to composition of courts martial).
§ COLONEL ALEXANDERsaid, he perceived that sub-section 2 of this clause reduced the number of members composing a regimental court martial from five to three. The power of the court was limited to the infliction of a punishment of 42 days' imprisonment with hard labour; but he also observed that there was, for the first time, a provision in the clause that each member of the court should have held a commission for not less than one whole year. Up to the present time the requirement had been that no officer should serve on a court martial until he had joined his regiment for six months, and that during that time he should have attended all the courts martial which were held in the regiment. That provision had been found to work irregularly, because it was not improbable that in the course of the six months no court martial would be held, and, consequently, an officer was liable to be placed on a court martial before he had had an opportunity of attending any court of the kind, or, at the most, only one or two, and when he was, consequently, altogether incapable of performing the duty he was required to perform. He quite approved of the alteration made by the clause in this respect; but he disapproved of sub-section 3, which reduced the number of members composing a general court 444 martial from nine to five. He would, therefore, move that sub-section 3 be struck out of the clause, in order to leave the number nine, as it now stood in the Act of 1879.
§ Amendment proposed, in page 12, to leave out sub-section 3.—(Colonel Alexander.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
MR. OSBORNE MORGANsaid, the Section was governed by section 48 of the Act of 1879, sub-section 2. That section provided that a general court martial should consist of not less than nine members; but, under the present law, nine was not adhered to as the minimum where the general officer who convened the court thought it would be impossible to bring nine officers together. Having regard to the interests of the Public Service, it had often been found expedient to reduce the minimum to five. Therefore, it was not correct to say that nine officers were the actual minimum. Nine formed the minimum in England; but abroad it was rarely found that nine officers were available, and the minimum was generally five. The present minimum, therefore, was practically five abroad and nine in England.
§ COLONEL ALEXANDERasked what the minimum was in India?
MR. OSBORNE MORGANsaid he could not answer for India. He did not see the records of Indian courts martial; but he did see them in regard to all other courts martial, and as there really existed at present a power to reduce the nominal minimum, he did not see what objection there could be to the clause. Her Majesty's Government thought the best course would be to reduce the minimum, and to provide that the number which was constantly employed should, in future, be the minimum, so as to make the proceedings uniform in every case. On the other hand, it was proposed to raise the status of the officers composing the court, so that, although the number was reduced, a prisoner would have the advantage of being tried by officers of higher standing. As a matter of fact, the clause did not reduce the minimum below that which was found necessary in the case of general courts martial abroad.
§ COLONEL ALEXANDERsaid, that what he wished to point out to his right hon. Friend was that the Act of 1879 fixed nine as the minimum for all general courts martial assembled in the United Kingdom, Malta, Gibraltar, and the East Indies; seven for Bermuda and Nova Scotia; and five for any Colony or any other place out of the Queen's Dominions. He did not see how it was not possible to continue that arrangement, and why the number should not be nine in the United Kingdom as heretofore.
§ MR. CHILDERSI think there is something in the objection of the hon. and gallant Gentleman, and on the Re-port I will consider the desirability of introducing nine as the number for the United Kingdom and the East Indies.
§ COLONEL ALEXANDERsaid, he was obliged to the right hon. Gentleman for the concession, and would not press the Amendment.
§ Amendment, by leave, withdrawn.
§ COLONEL ALEXANDERsaid, that for the same reason he proposed to amend the clause in regard to district courts martial. The clause reduced the number of officers composing a regimental court martial from five to three, and also reduced the number of a district court martial from seven to three. He would move that the number "five" be substituted for a district court martial.
§ Amendment proposed, in sub-section 4, line 19, to substitute "five" for "three."—(Colonel Alexander.)
§ Question proposed, "That the word 'three' stand part of the Clause."
§ COLONEL ALEXANDERintimated that upon that understanding he would not press the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 23 agreed to.
§ Clauses 24 to 34, inclusive, agreed, to.
§ Pay.
§ Clause 35 (Amendment of ss. 133 to 135 as to penal stoppages from ordinary pay).
§ COLONEL ALEXANDERasked for an explanation with respect to sub-section 446 A of this clause. The powers of commanding officers were considerably increased by the Act of 1879, and it seemed to him that this sub-section would tend to induce commanding officers to keep soldiers in confinement, thereby delaying the punishment due to their offences, which ought to be awarded as soon as possible.
§ MR. CHILDERSsaid, that would not be the effect of the clause, which was intended to correct that portion of the Act of 1879 which provided that a soldier absent without leave should forfeit his pay during his absence, and also for every day of his imprisonment and detention on the charge for which he was brought before the court martial.
§ MR. O'DONNELLsaid, he found no provision in the clause that where a commanding officer delayed to bring a soldier to punishment the soldier should not suffer for the delay caused by the misconduct of the commanding officer.
MR. OSBORNE MORGANsaid, that Section 45 of the Act of 1879 provided that the soldier should be brought to trial within eight days.
§ COLONEL ALEXANDERsaid, that sub-section 3 would, in his opinion, effect a considerable improvement on the existing practice. There were amongst commanding officers different methods of calculation with regard to the days of a soldier's absence without leave; and, therefore, this portion of the clause could not but be regarded as effecting a great improvement. But, then, the next sub-section went in the opposite direction; and the Government, it would seem, took away with one hand what they had given with the other. He, therefore, begged to move its omission.
§
Amendment proposed,
In page 16, line 1, leave out from "or" to the end of the sub-section.—(Colonel Alexander.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
§ MR. CHILDERSsaid, he trusted the Amendment would not be pressed. It had been deemed right that the commanding officer should have power to inflict heavier punishment where necessary.
§ Amendment, by leave, withdrawn.
447§ Clause agreed to.
§ Clause 36 agreed, to.
§ Exemptions of Officers and Soldiers.
§ Clause 37 (Exemptions from jury).
SIR WALTER B. BAETTELOTsaid, it was a question of importance whether the Militia and Volunteers, when called out for training, should not be exempt from serving upon juries. He had known one or two cases where men belonging to these branches of the Service had been called upon to serve during the time they were in camp; and, therefore, he asked the right hon. Gentleman (Mr. Childers) whether it would not be possible to exempt these persons from serving on juries during their periods of training?
§ MR. CHILDERSsaid, that this question had been gone into by him on a former occasion, when it was found that there were difficulties in the way of making the exemptions suggested by the hon. and gallant Baronet, although the law exempted persons belonging to the Militia from serving on juries during the period of their training.
§ MR. WARTONsaid, he considered that words should be introduced to prevent Volunteer officers being called upon to serve on juries.
§ MR. CHILDERSsaid, there was considerable difficulty involved in this question with respect to the Volunteer Service. He was not prepared to introduce any words into this Act providing for the exemption of Volunteer officers from serving on juries.
§ Clause agreed to.
§ Clauses 38 to 42, inclusive, agreed to.
§ Clause 43 (Amendment of s. 171 as to application of the Act to Royal Marines).
§ SIR WALTER B. BARTTELOTsaid, at the time of the passage of the Army Discipline and Regulation Act of 1879, he had drawn attention to the question of Marines landed and serving on shore, and had referred to a case where a body of Marines had been, under these circumstances, for 14 days subject neither to the Mutiny Act nor any discipline Act whatever. He asked that the word "shall" should be substituted for the word "may," so as to make it clear that a Marine force serving on shore would be under the Army Discipline and Regulation Act.
§ MR. CHILDERSsaid, he thought it better that the wording of the clause should remain for the present.
§ Clause agreed to.
§ Clauses 44 to 47, inclusive, agreed to.
§ Clause 48 (Amendment of s. 181 as to definition of active service in certain cases).
§ COLONEL ALEXANDERsaid, this clause gave great power to the Governors of Colonies, and to commanding officers of troops out of Her Majesty's Dominions. The Committee would see by the 6th clause of the Act of 1879 that a very great distinction was drawn between offences committed on active service and those committed at other times. For instance, a soldier who, on active service, was guilty of sleeping or being drunk at his post, was, on conviction by court martial, liable to the penalty of death; while, for the same offences committed when not on active service, he was liable to imprisonment only. He thought the Committee should hesitate before they conferred upon the Governors of Colonies or upon officers commanding troops out of Her Majesty's Dominions such extensive powers as were proposed by this clause.
§ MR. CHILDERSsaid, he would refer the hon. and gallant Gentleman to the following clause, which provided that the Governor of a Colony or the commanding officer of troops, if they had the means of direct communication with the Secretary of State for War should obtain his consent before carrying out the sentence.
§ COLONEL ALEXANDERpointed out that it would have been impossible to communicate directly with the Secretary of State in the case of the outbreak of the Zulu War, because there was no telegraph with the Cape at the time.
§ SIR WALTER B. BARTTELOTregretted to say that he considered this clause to be absolutely necessary, because he believed that circumstances had arisen which had compelled the right hon. Gentleman the Secretary of State for War to insert it in the Bill, although it might be true that the punishment of flogging had nothing to do with the question, yet the abolition of that punishment had made it absolutely necessary that the powers provided for in the clause should be granted.
§ MR. O'DONNELLsaid, the practical effect of the clause would be that offenders on active service would be liable in future to much severer penalties than at present. He thought the clause should be revised, because he objected to a commander having power, merely for the purpose of punishing a certain class of offences, to create a fictitious state of war ad hôc.
§ MR. CHILDERSsaid, that all cases would be most carefully revised.
§ Clause agreed to.
§ Clauses 49 and 50, inclusive, agreed to.
§ Amendment of Regimental Debts Act.
§ Clause 51 (Amendment of 26 and 27 Vict. c. 57 as to collection, disposal of effects of deceased officers and soldiers).
§ On the Motion of Mr. CHILDERS, Amendment made, in page 25, line 15, after "may," by inserting "after such notice only, if any, as is determined in the regulations; "in page 25, line 18, after "soldier," by inserting "and may dispose of the same."
§ Clause, as amended, agreed to.
§ Clauses 52 to 54, inclusive, agreed to.
§ Schedule agreed to.
§ Bill reported; as amended, to be considered upon Thursday.