COMMITTEE.

HC Deb 05 April 1883 vol 277 cc1598-608

Order for Committee read.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."

MR. SEXTON

said, he did not know whether the Government desired to make any statement before Mr. Speaker left the Chair, with regard to the Motion made on Monday night that the Bill be read a second time; but he wished to state that he did not find it consistent with his public duty to allow this Bill to pass through any stage without making a protest against the disreputable system maintained by the War Office with respect to the maintenance of soldiers' children and wives. If it were open to him to convey to the public mind any adequate sense of the system in question, he believed that system could not stand for a single hour; he would go farther, and say if he could impart to the Members of the House a just idea of the mean and hateful system under which the wives of soldiers were denied their rights, neither this nor any other Government would be able to retain Office if it allowed that system to continue. Ten years ago the House committed itself to the principle that a soldier of the Regular Forces should be liable for the maintenance of children of which he was proved to be the father to the same extent as if he were a civilian; but, as the House would be aware, that principle had been systematically evaded by the War Office. What was the position in this respect of a person who was not a soldier? He was liable to be taken by a woman into a Court of Justice; if his liability were proved the magistrate would make an order, and the law would compel him regularly and effectually to obey the order of the Court. That was exactly what the 145th clause of the Army Act declared should be the position of a soldier; but, as he had already pointed out, the intention of the clause was systematically evaded by the authorities, who placed the Army before the recruit as a refuge from his natural and legal liability. They said to him, in effect—"Join the Army, and we shall make it a place of refuge for you from your liability to maintain your wife and children." Under the present system a woman must go the workhouse and get the Guardians to issue a summons against her husband, and it was required that a sufficient sum of money should be sent to the commanding officer, to convey the soldier to the place of hearing and then back to his quarters. That, he said, was a denial of justice, and prohibitive of the hearing of the complaint. But even if the woman could find the money, there was still the War Office rule that the soldier, notwithstanding any order made against him, might be sent on foreign service, in which case his wife and children might starve. This rule was, practically, another evasion of the law, and should be at once abolished, because a regiment that was ordered abroad could do very well without a soldier who had deserted his wife and child; and he contended that the regiment should proceed on foreign service without him, or, at any rate, that the man should be compelled to answer the claim upon him, as the Act said, "in the same manner as if he were not a soldier." They were told that the rule which required that a sum of money should be deposited for the transport of the soldier to and from the Court was necessary to insure the bonâ fides of the woman's application. They were also told that the woman might induce the soldier to desert; but in reply to that he submitted that a woman so disposed would have sufficient opportunities for her purpose under the ordinary regulations of the Army. There could, however, be no difficulty in preventing this if a corporal and a private were sent with the soldier to the place where the charge was made. Let the woman be provided with the means of proceeding out of the public funds. He thought that having to spend money in vindication of justice would be better than that the imputation should he that the British Army was an asylum in which a man could evade his most sacred liabi- lities. The Secretary of State was obliged to make some allowance to the wives of soldiers; but the amount of it was at his option—he might allow, in the case of a private, as little as a 1d., and in the case of sergeants 6d. a-day, The noble Marquess had informed him that 840 orders had been made last year in cases in which paternity was proved. But if he looked into the workhouses, he would find that it was only one in ten of the orders which ought to have been made that were made; and, therefore, he said, in order to establish this system upon a basis of equity, it was necessary not only that the Secretary of State for War should make an order, but that the wife should be provided by the War Office with sufficient money to meet the demands upon her. He promised that, so long as he remained in that House, and so often as this practice came before him in any form, whether in a Bill or otherwise, he should confront the Government with the comments which belonged to so vile a system.

Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day six months, resolve itself into the said Committee,"—(Mr. Sexton,)—instead thereof.

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

THE JUDGE ADVOCATE GENERAL (Mr. OSBORNE MORGAN)

said, he should have thought that the proper time to raise this question would have been when, in Committee, they reached the 7th section of the Bill. As, however, the hon. Member for Sligo had anticipated the proceedings in Committee, and had now given his reasons for desiring an amendment in the way indicated, perhaps the better plan would be for him to at once follow the hon. Gentleman. There was a great deal in the speech of the hon. Member to which he must demur. The hon. Member spoke of the civil obligations of a soldier. It must be remembered that a soldier had undertaken certain duties to his Queen and country.

MR. SEXTON

said, the 145th section of the Army Act said— A soldier of the regular forces shall be liable to contribute to the maintenance of his wife and of his children, and also to the maintenance of any bastard child of which he may be proved to be the father, to the same extent as if he were not a soldier. …

THE JUDGE ADVOCATE GENERAL (Mr. OSBORNE MORGAN)

said, that was certainly so in theory. The hon. Member, however, stopped short in the middle of the section. The section went on to say— But execution in respect of any such liability or of any order or decree in respect of such maintenance shall not issue against his person, pay, arms, ammunition, equipments, instruments, regimental necessaries, or clothing; nor shall he be liable to be punished for the offence of deserting or neglecting to maintain his wife or family, or any member thereof, or of leaving her or them chargeable to any union, parish, or place. Of course, there was no doubt the section began by declaring the liability of the soldier; but it went on to relieve him from the liability of execution. If execution could be issued against his arms, for instance, it was clear he would not be able to discharge his duty to his country. The liability of a soldier, therefore, was not the same as that of any other man. A soldier had a two-fold liability; he was under an obligation to support his wife and family, and he had to serve his Queen and country. Their business was to try, as far as they could, to reconcile the two obligations. Under the old Mutiny Act it was laid down that a soldier was under no kind of obligation to support his wife and family, that he might snap his finger at any such liability; but in 1873 Lord Card well, who was one of the most just men who ever lived, considered the subject, and introduced into the Mutiny Bill of that year the clause he (Mr. Osborne Morgan) had just read. The effect of that clause was simply that when any order had been made against a soldier for the maintenance of his wife or family or any illegitimate child, or when it appeared to the Secretary of State for War that a soldier had deserted, without reasonable cause, his wife or family, the Secretary of State might order a stoppage of a certain amount from the pay of the soldier to be appropriated— In the first case, in liquidation of the sum adjudged to be paid by such order or decree; and, in the second place, towards the maintenance of such wife or children, in such manner as the Secretary of State thinks fit. It was now proposed that that discretion of the Secretary of State be taken away. Now, it must be remembered that the Act contemplated two processes. In the first place, an order might be made by the Court before whom the case was brought; and, in the second place, the Secretary of State, where he was satisfied, without any inquiry or judicial proceedings, that a soldier had deserted his wife or children, might make an order. It was, however, only in regard to the first case that the Proviso contained in the 3rd sub-section applied. The Proviso was as follows:— Where a proceeding is instituted against a soldier of the regular forces, under any Act, or at Common Law, for the purpose of enforcing against him any such liability as above in this section mentioned, and such soldier is quartered out of the jurisdiction of the Court, or if the proceeding is before a Court of Summary Jurisdiction, out of the Petty Sessional Division in which the proceeding is instituted, the process shall be served on the commanding officer of such soldier; and such service shall not be valid unless there be left therewith, in the hands of the commanding officer, a sum of money (to be adjudged as costs incurred in obtaining the order or decree, if made against the soldier) sufficient to enable him to attend the hearing of the case and return to his quarters, and such sum may be expended by the commanding officer for that purpose; and no process whatever under any Act, or at Common Law, in any proceeding, in this section mentioned, shall be valid against a soldier of the regular forces if served after such soldier is under orders for service beyond the seas. That was a Proviso which the hon. Member for Sligo wished to repeal. The Proviso did not apply to a case in which the claim was disputed, and in which the soldier had to appear before a Court to answer the claim. The process which took place at the War Office was this. The wife applied to the War Office, then an inquiry was made of the commanding officer, and in many cases the soldier admitted his liability, and there was an end of the matter. If, on the contrary, the man denied the liability, the thing had to be fought out before the Court, and then the Proviso he had read came into operation. There were two distinct reasons for the Proviso—the danger of collusion between the soldier and the woman, and the hardship upon the soldier. It was well known that many of the bastardy cases which were brought up were by no means genuine; and it was scarcely fair that a case of this kind should be sprung upon a man who had been called away to serve in a distant locality; for if a soldier was serving in the same town in which the woman, or wife was living, the Proviso, of course, had no application. Let them take the case of a man stationed in Belfast, but against whom proceedings were taken in Canterbury. Of course, he must appear before the Petty Session, in order to answer to the case. How was he to get there? It was not his fault he had been obliged to leave Kent and go to Belfast. A civilian was a free agent; but a soldier must go where he was ordered. At whose expense was he to travel from Belfast to Canterbury? It was absurd to say he was to go at his own. Probably he had not got the money. Was he to go at the expense of the country? It would be very hard indeed if the country had to bear the cost of transit in a trumped up case; and in every other case the money lodged would be returned to the party depositing it as part of the costs of the proceedings. It was said it would be hard on the woman if she had to pay the expenses; but it was not the woman who would have to do so, but the Guardians; for a wife, as the law now stood, could not take proceedings against her husband for the purpose. The woman would apply to the Guardians as a pauper, and then the Guardians would institute the proceedings. Of course, in a bonâ fide case the Guardians, whose interest it was to enforce the liability, would take very good care to find the money by means of which the case could be heard. He submitted that the hon. Member for Sligo had not made good his case.

MR. JUSTIN M'CARTHY

said, the right hon. and learned Gentleman had, perhaps not unnaturally, considering the character of his Office, appeared in the rôle of the advocate of the unprotected soldier. He seemed to think there was little or nothing to be said for the woman. He appeared to assume that the soldier was a person whom the whole community was bound to protect, and that there was no occasion for anybody to take any interest in the case of the woman. The right hon. and learned Gentleman did not seem to understand the force of the objection taken by the hon. Member for Sligo (Mr. Sexton), and that was all the more surprising, because his hon. Friend opened his case with remarkable and perfect clearness. His hon. Friend's contention was, in the main, this—that whatever change the law allowed the woman to obtain justice it was negatived by the obstacles thrown in her way. It was well known that Poor Law Guardians were not particularly anxious to make advances of money. He failed to see the use of making this strange distinction between soldiers and civilians. It surely could not be said that the Army was in such a condition that unless the distinction was set up a large number of soldiers would withdraw. It had been said that it would be hard if the country were called upon to pay the cost of the proceedings. He did not see why the Army authorities should not deposit the amount required; and he was persuaded that the cost to the country would not, in the course of the year, exceed more than a few hundred pounds. The distinction between soldiers and civilians which now existed was discreditable to the Army. Morally, it was revolting; and the sooner it was abolished the better it would be for the credit and honour, and even the economy, of the country.

MR. GORST

agreed with the right hon. and learned Gentleman the Judge Advocate General that it was exceedingly inconvenient to discuss this matter on the Motion that the Speaker should leave the Chair. As the discussion had arisen, however, perhaps he might be allowed to offer one or two observations to the House. It seemed to him that the true principle which had been accepted by the Government and the War Office was that a soldier should have no privilege over a civilian in being exempt from the maintenance of his wife and children; that, as far as his liability was concerned, he should be placed precisely on the same footing as a civilian; and that the only peculiarity in the case of a soldier should be that, in enforcing the liability, nothing should be done to prevent his discharging his duty to his Queen and country. To that principle he did not think any objection would be raised. The objection made was that in this particular part of the clause the authorities did not carry out their own principle; but that they gave to a soldier a peculiar kind of privilege which no civilian enjoyed, and which was not essential to the performance of the man's duty as a soldier. Let him take the example which was given by the right hon. and learned Gentleman himself—the case of a soldier and a civilian who had each got a child chargeable upon them in Kent. The soldier was quartered in Belfast, and the civilian had gone to Belfast for the purpose of seeking work. In both of the cases an application was made before the Petty Sessions in Kent for an order on the father for the maintenance of the child. In the case of the civilian the order was served in Belfast. He had no one he could go to to pay his expenses. If he chose to pay the expenses out of his own pocket he could; if he had not got the money he could not appear, and then the case was heard in his absence. His presence was not essential. Justice could be done even though the man was not there, although he had a right to be present and to show cause why an order should not be made upon him. If he did not attend the evidence of the woman would be taken; and if it were confirmed by independent testimony an order would be made on the man. But a soldier had a privilege which a civilian had not; because, if the process in the Petty Sessions Court was served upon him in Belfast, the proceedings were void, unless a sufficient sum of money was deposited to pay his expenses to and from Kent. Why should that be so? He should have sufficient leave of absence to attend the Court; why should he have his expenses deposited when a civilian had not? Why should he be put in any different position to a civilian? If he had not money to attend the Court an order ought to be made in his absence. It always happened that if a defendant was not present the Justices who heard the case were more particular. They always took care the evidence was quite conclusive. They ought to be able to make an order upon an absent soldier, exactly in the same way as they would on an absent civilian. There was no doubt that the privilege afforded a soldier in this matter was not necessary for the discharge of his military duty. The Amendment suggested would put a soldier in exactly the same position as a civilian; he would have no greater or no less obligation or privilege. Ever since he had had the honour of a seat in that House he had thought this Amendment most reasonable and practicable. The right hon. and learned Gentleman the Judge Advocate General asked who was to pay the expenses; and, he added, the soldier ought not, neither ought the public. He (Mr. Gorst) agreed that the public ought not. The right hon. and learned Gentleman was quite wrong in saying that the Guardians should pay the money, because the Guardians did not institute the proceedings. It was obvious that the woman wished, by obtaining an allowance from the putative father of her child, to avoid the necessity of going to the workhouse. Whatever was the case in regard to the civilian ought to be the case in regard to the soldier; and he (Mr. Gorst) maintained that unless the privilege now allowed to the soldier was necessary for the exigencies of the Military Service—and it could not be said it was—it ought at once to be swept away.

MR. ARTHUR ARNOLD

expressed the hope that the hon. Member for Sligo (Mr. Sexton) would withdraw his present proposal. He voted with the hon. Member on this point last year, and in Committee on this occasion he should vote with him.

MR. CAVENDISH BENTINCK

said, that during the last Parliament he held the Office of Judge Advocate General; and, therefore, he asked leave to make a few observations in reference to this matter. The objections which he frequently urged to the principle of the Amendment had been repeated by the right hon. and learned Gentleman opposite (Mr. Osborne Morgan), so that it was not necessary he should mention them again. In answer to what had been said by the hon. and learned Gentleman the Member for Chatham (Mr. Gorst), he desired to say that the example he cited of a civilian and a soldier in Belfast was hardly a happy one. If a civilian went to Belfast he did so at his own free will; and, therefore, if he was called upon to answer a bastardy summons in Kent it was his own fault; whereas, if a soldier went to Belfast, he did so by the command of the Queen, and therefore he was not a free agent. It was not on the question of principle that he would dwell, but simply on the practice in the matter. When he held the Office of Judge Advocate General he interested himself in the matter; and he found that during the whole of his official career not one single complaint was brought by any married woman. The real fact of the matter was that in a bonâ fide case the question would never arise. Whenever a summons was taken out against a soldier there was always a full inquiry at the War Office; and in any bonâ fide case justice was never denied, and complaints as to the decision arrived at were never made. He had no doubt the noble Marquess (the Marquess of Hartington) would confirm the statement he had made—namely, that complaints were never made as to the action of the authorities in case of proceedings instituted against any man in the Service. That being the case, he did not think the House would do well, when they got into Committee, to assent to the Amendment which stood in the name of the hon. Member for Sligo.

MR. SEXTON

asked the permission of the House to withdraw his Amendment, and remarked that he would move the Amendment of which he had given Notice in Committee on the Bill.

Amendment, by leave, withdrawn.

Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.

Bill considered in Committee.

(In the Committee.)

Clauses 1 to 4, inclusive, agreed to.

Clause 5 (Amendment of s. 80 (4) of 44 and 45 Vict. c. 58, as to attestation paper).

MR. LABOUCHERE

said, he had been asked by the Secretary to the Justices' Clerks' Society to mention that in 1881 the local military authorities filled up the attestation papers before sending them to the magistrate. Since then it had been decided that these papers should be duplicated, and the Justices' clerks were afraid that they would be called upon to fill up two forms. That would take up a great deal of their time, and yet the military orderlies could fill them up just as well. He should be glad if the right hon. and learned Gentleman (the Judge Advocate General) would say that these forms should be filled up by the orderlies, and that the Justices' clerks would merely be required to see that the attestations were properly filled up; and that they should receive the usual 1s.

THE JUDGE ADVOCATE GENERAL (Mr. OSBORNE MORGAN)

said, it had been deemed desirable to have duplicate forms; but he could not conceive that any official trouble would be cast upon the Justices' clerks.

MR. LABOUCHERE

said, he thought that if the Judge Advocate General would look at one of these forms he would see that they were very lengthy; and it seemed to him that the clerks ought to receive the 1s. for the work.

THE JUDGE ADVOCATE GENERAL (Mr. OSBORNE MORGAN)

said, that, as a matter of fact, the Justices' clerks did not receive any fee for this work.

Clause agreed to.

Remaining clauses agreed to.

MR. SEXTON moved the following new Clause:— (Liability of soldiers to maintain wife and children.) Whereas it is desirable that the liability of a soldier or marine to maintain his wife and children should be real and better defined, and it is expedient to provide for the same, Be it, therefore, Enacted, as follows:—That section one hundred and forty-five of 'The Army Act, 1881,' shall be construed as though all the words after 'commanding officer of such soldier,' in sub-section three, were omitted. The hon. Member explained that its object was to make it quite clear that a soldier was as liable for the maintenance of his wife and children as if he were not a soldier.

New Clause brought up, and read the first time.

Motion made, and Question put, "That the said Clause be now read a second time."

The Committee divided:—Ayes 53; Noes 68: Majority 15.—(Div. List, No. 52.)

House resumed.

Bill reported; as amended, to be considered To-morrow.