§ THE DUKE OF BEDFORD,who had given notice, "To call attention to Sections 42 and 27 of the Army Act and to Rules of Procedure, Part 2, Section 124, and to the existing system of prerogative courts of inquiry; and to ask if the Commander-in-Chief is empowered to pronounce sentence against an officer upon his statement made not upon oath, and as a witness before a court of inquiry" said: My Lords, in calling attention to certain questions of military law and procedure, I am compelled to quote largely from the Army Act, and for the length of my quotations I feel I must seek your Lordships' indulgence. I propose to illustrate those points which I am anxious to submit for your Lordships' consideration by reference to the case of Colonel Kinloch. Let me say at once that I do not intend to discuss the decision of the Commander-in-Chief. The questions at issue are far wider than the vindication of the character of a particular officer. 612 They involve the discipline of the Army. They affect the position of every man who holds a commission in His Majesty's service. Soldiers do not live under civil law, but they are entitled to have their special law administered strictly in accordance with the Army Act, and upon the broad principles of justice which centuries of experience have established in this country. Their special law is embodied in the Army Act and the Rules of Procedure which contain the contract of service that Parliament makes with officers and men. The terms of that contract cannot be altered by the Commander-in-Chief or the Secretary of State. A company may empower their manager to dismiss their servants, but these summary powers do not justify the manager in breaking the terms of any contract of service between the company and their servants.
In the first place, then, I direct your Lordships' attention to the 42nd Section of the Army Act. This Section lays down the regulations under which officers may obtain redress of their wrongs. The Section reads as follows—
If any officer who thinks himself wronged by his commanding officer, and, on due application to him, does not receive the redress to 613 which he may consider himself entitled, he may complain to the Commander-in-Chief, in order to obtain justice, who is hereby required to examine into the case, and through the Secretary of State for War, to make his report to His Majesty in order to receive the directions of His Majesty thereon.In the Manual of Military Law, printed by authority of the War Office, the following note is added in connection with this Section—It is the custom of the Service to forward every complaint through the officer commanding the regiment, and an officer would not be justified in deviating from this course unless the commanding officer refused or unreasonably delayed to forward. An officer complaining himself to the general in command should apprise his commanding officer of his doing so, and must observe in the channel of approach to the Commander-in-Chief, each intermediate gradation as a general of brigade or division. A false accusation or statement on preferring a complaint under this Section is punishable under Section 27.Section 27 of the Army Act provides—That any officer making a complaint when he thinks himself wronged, and knowingly making any false statement, or suppressing any material facts, is liable to trial by Court-martial.The effect of these two Sections combined is obvious. They enable any officer to prefer a complaint to the Commander-in-Chief by observing the necessary regulations. They impose grave penalties upon an aggrieved officer for any inaccuracy in his complaint. They protect a commanding officer from any charges brought against him behind his back by those under his command, without which protection and the case of Colonel Kinloch shows it very clearly—his position would be impossible. No subalterns under the command of Colonel Kinloch ever asked to have a wrong redressed. On the 5th of March, the right hon. Gentleman the Secretary of State for War, made the following official statement—On December 12th, 1902, Lord Bel haven the father of one subaltern in the 1st Battalion Grenadier Guards, and Lord De Saumarez, the relative of another subaltern, called on the Commander-in-Chief, and verbally complained that young officers in the battalion had been tried by so-called Subalterns' Courts martial, not only for offences against regimental etiquette, but for military offences.This form of conveying a complaint to the Commander-in-Chief is nowhere contemplated in the Army Act. From fresh departures spring new results, and in tins instance a conflict of evi- 614 dence arose in your Lordships' House, an incident upon which I need not dwell. On the 11th March, the Secretary of State for War made the following statement—Lord De Saumarez would never have gone to the Commander-in-Chief had it not been that a relative of his had received notice from the regimental authorities that on the following Monday Mr. Leveson-Gower would be called upon to resign his commission, because he had ceased to be a credit to his regiment.This second statement changes completely the character of the first, but it is not with the contradictory tenor of these official statements that I am concerned I take the second statement, and deal with the fact that Mr. Leveson-Gower complained through his relative, Lord De Saumarez, direct to the Commander-in-Chief that he had been called upon to resign his commission, because he was no longer a credit to his regiment. We have it on the authority of the Secretary of State for War, that Lord De Saumarez would not otherwise have gone to the Commander-in-Chief. Colonel Kinloch was not the regimental authority who called upon Mr. Leveson-Gower to resign his commission. That regimental authority must have been the colonel commanding the three battalions. No officer is called upon to resign his commission without some sufficient reason. Briefly, the circumstances were these. Colonel Kinloch, having discovered the abuses consequent upon the Subalterns' Courts-martial, had reported the circumstances to the colonel of the regiment, some of the officers concerned having passed from his command. The colonel of the regiment directed him to deal with the matter. In consequence of the action then taken by Colonel Kinloch, Lieutenant Leveson-Gower asked for a private interview with Colonel Kinloch, who consented to see him, but only in the battalion orderly room and in the presence of the two senior officers of the battalion. On that occasion Lieutenant Leveson-Gower threw himself on the mercy of his commanding officer, confessed to having made false statements concerning him, and asked to be allowed to withdraw them. Colonel Kinloch consented to their withdrawal, but said that the matter had passed from his hands into those of the colonel commanding the regiment. Lieutenant Leveson Gower 615 then appeared in the regimental orderly room before the colonel of the regiment and his regimental adjutant, and repeated the same confession of false statements concerning Colonel Kinloch.Such are the circumstances which led to Lieutenant Leveson-Gower being asked to resign his commission. His complaints concerning the colonel commanding the regiment, the lieutenant-colonel commanding his own battalion, and the discipline of his brother officers constitute a comprehensive indictment. But all these complaints were referred direct to the Commander-in-Chief through his relative, and have never been subject to Sections 42 and 27 of the Army Act, and that in spite of the fact that on two previous occasions, and in the presence of several witnesses, Lieutenant Leveson-Gower had confessed to making false statements concerning his commanding officer. The course adopted threw to the winds all the protection to which, under the terms of the Parliamentary contract, every commanding officer is entitled, and freed the accuser of all responsibility as to the truth of his charges imposed on him by Parliament under Section 27 of the Army Act. Of this statutory protection and statutory liability afforded by the Army Act, commanding officers are naturally jealous. The Secretary of State for War in another place declared that to insist upon the Statute would be a very severe straining of military law. But, my Lords, it is a term, and, in the opinion of commanding officers, it is an essential term of the Parliamentary contract. It is part of the bargain, and, whether Secretaries of State and Commanders-in-Chief like it or not, Parliament must be obeyed and the Statute acted upon. In this connection I would remind the noble Earl the Under Secretary of State for War of the argument he made use of a short time ago in this House. He justified the refusal of the Commander-in-Chief in the first instance to grant Colonel Kinloch the favour of a hearing by saying—
Lord Roberts cannot think it fair to countenance one code of discipline for a regiment which may be favourably situated for access to the authorities, and a different code for one not so situated.But may I ask the noble Earl this question? Does he think it fair to countenance one code of discipline for the officers of a regiment whose relatives may be 616 favourably situated for access to the authorities, and another code for those whose relatives, by the accident of locality, are not so situated? Parliament plainly intends that a case such as that of Lieutenant Leveson-Gower, an aggrieved officer because he had been called upon to resign his commission, as being no longer a credit to his regiment, which, in his opinion was not the case, should be dealt with under Sections 42 and 27 of the Army Act. But the discretionary power claimed and exercised by the Commander-in-Chief of our Army enables him to decide if he will allow the Act to operate. In other words, it enables him to dispense with the Army Act altogether, and to nullify the contract which Parliament has made with officers and men. I beg to ask the noble Earl why Lieutenant Leveson-Gower was allowed to prefer a complaint to the Commander-in-Chief in a manner contrary to Sections 42 and 27 of the Army Act, and thus to free himself, as an aggrieved officer, from the responsibility of the truth of his charges, and to deprive his commanding officer of the statutory protection against false statements conferred on him by Act of Parliament?I now leave Sections 42 and 27 of the Army Act and pass on to an entirely different state of matters. Once a Commander in-Chief has adopted a certain form of procedure, then he is bound to carry it out according to the strict letter. He is no longer, in virtue of any discretionary power, outside the Army Act, but he is firmly held within the meshes of the Rules of Procedure laid down by Act of Parliament. Acting on the information conveyed to him on Friday, December 12th, by Lord De Saumarez, who was instructed by Lieutenant Leveson-Gower, the Commander-in-Chief ordered a Court of Inquiry to be convened. That Court of Inquiry met on Sunday, December 14th, and forwarded the information collected on the next day. Now, my Lords, what are Courts of Inquiry. Remember that nothing like them is known in civil life. Courts of Inquiry are of two kinds—statutory and prerogative, but I am only concerned with prerogative Courts of Inquiry. A Court of Inquiry convened by the Commander-in-Chief is of this character. It is not under the sanction of a Statute, but its proceedings are regulated by the 617 Rules of Procedure, Part 2, Section 124. The members who compose a Court of Inquiry take no oath. They do not, unless so directed by the convening officer, and in this case they were not so directed, take evidence on oath. The witnesses who attend do not give testimony under the sanction of an oath or any legal summons from the Crown. Their information is purely voluntary, and they are invited to speak under the representation that their statements will be received and treated as confidential communications. The whole proceedings are informal and extra-judicial. Until a year ago this was the definition of a Court of Inquiry—
A Court of Inquiry has no judicial power, and is in strictness not a Court at all, but an assembly of persons directed by a commanding officer to collect evidence with respect to a transaction into which he cannot conveniently himself make inquiry.That was changed by an Army Order of April, 1902 into—An assembly of officers directed by a commanding officer to collect evidence and report with respect to a transaction into which he cannot himself conveniently make inquiry.But can the noble Earl the Under-Secretary of State for War explain why the former definition is no longer applicable? No authority is anywhere conferred on the Commander-in-Chief to pass sentence on any of the material forwarded. Subsection L says—The proceedings of a Court of Inquiry, or any confession, statement, or answer to a question, made or given at a Court of Inquiry, shall not be admissible in evidence against an officer or soldier, nor shall any evidence respecting the proceedings of the Court be given against any officer or soldier.Now, in view of that Section, is a Commander-in-Chief empowered to pass sentence, as he did in the case of Colonel Kinloch, upon the statement made by him as a witness before a Court of Inquiry? I must now remind the noble Earl, the Under-Secretary of State for War, of the words he used in your Lordships' House before Easter. The noble Earl said—I desire to emphasise the fact that Colonel Kinloch gave evidence before a Court of Inquiry appointed by Sir H. Trotter, and that it was on that evidence that the Commander-in-Chief formed his opinion.We know, then, that the Commander-in-Chief did, as a matter of fact, sentence Colonel Kinloch on the statement made 618 by him as a witness before the Court of Inquiry. Therefore, the War Office must hold that the Commander-in-Chief is empowered to take such action. But, my Lords, from whence is derived this authority which over-rides an Act of Parliament and confers upon the office of Commander-in-Chief a despotic power which is beyond all law, and which has never been allowed under our constitution to any single individual in any department of Government? On this point I hope for some information from the noble Earl, the Under Secretary of State for War, because I do not understand how the discretionary powers of a Commander-in-Chief can be used to in fringe the provisions of an Act of Parliament. I am confident, however, that when an officer appears before a Court of Inquiry then no Commander-in-Chief and no Secretary of State can deprive him of the assistance of those provisions which Parliament has enacted for the vindication of his character or military reputation.My Lords, this is no question of military law or military procedure. It is a question of the infringement of the provisions of an Act of Parliament. I propose to quote the various Subsections of Rule of Procedure 124, and to show how in each instance in the case of Colonel Kinloch they have been violated. Sub-section F lays down—
Whenever any inquiry affects the character or military reputation of an officer or soldier full opportunity must be afforded to the officer or soldier of being present throughout the inquiry, and of making any statement, and of giving any evidence he may wish to give, and of cross-examining any witness whose evidence in his opinion affects his character or military reputation, and producing any witnesses in defence of his character or military reputation.Your Lordships must remember that Colonel Kinloch appeared before this Court as a witness only. Yet it was on his statement before this Court that the Commander-in-Chief based his decision that Colonel Kinloch was unfit to remain in the command of his battalion. Colonel Kinloch appeared before the Court with the character of a competent commanding officer. The Secretary of State for War said on the 5th March—I may add that Colonel Kinloch is an officer who, apart from recent occurrences, had served with credit at home, and with distinction on active service.619 As a result of the proceedings before the Court of Inquiry the Commander-in Chief bestowed upon him the military reputation of unfitness to continue in the command of his battalion. Now it is a fact that Colonel Kinloch was not allowed to be present throughout the Inquiry. He was not allowed to cross-examine the witnesses, although Mr. Leveson-Gower, his accuser, appeared as a witness before the Court. He was not afforded a full opportunity of making any statement or giving any evidence he might wish to give. He was not even allowed to complete the statement he did make, because the Court of Inquiry stood suddenly adjourned to finish its investigations, and, whilst thus abruptly adjourned, was dispersed. Sub-section C provides that—The Court will be guided by the written instructions of the officer who assembled the Court. The instructions should be full and explicit, and must state the general character of the information required from the Court of Inquiry in their report.This Section directs that the Court itself must be informed by written instructions what is the specific point of their investigations. That point could not have been the character or military reputation of Colonel Kinloch, for if the Court had been warned that Colonel Kinloch's military reputation was to be determined by his statement they would have proceeded under Subsection F. The very fact of their not so proceeding was the strongest possible intimation to Colonel Kinloch that his character was not in question. He therefore made his statement, having been assured by the procedure adopted by the Court that his words could not be used to affect his military reputation. Sub-section G reads—It is the duty of the Court of Inquiry to put such questions to a witness as they think desirable for testing the truth or accuracy of any evidence he has given, and otherwise for eliciting the truth.The Court had been told that Colonel Kinloch's character was not under investigation, therefore they did not examine witnesses with a view to extracting the truth on that point. This is most important because of Lieutenant Leveson-Gower. I must remind your Lordships that Lieutenant Leveson-Gower admitted having made false statements concerning his com- 620 manding officer, in consequence of which the regimental authorities asked him to resign his commission. He then preferred a complaint to the Commander-in-Chief in a manner which evaded Sections 42 and 27 of the Army Act. He next escaped cross-examination at the hands of Colonel Kinloch because Sub-section F. of Rule of Procedure 124 was violated, and finally avoided that examination to which he would have been subjected at the hands of the members of the Court of Inquiry had they not been misinformed as to the true point of their investigations. The information collected by the Court of Inquiry was forwarded to the Commander-in-Chief. It is here that the extreme hardship of the procedure begins. If the Court of Inquiry forwarded information on which the Commander-in-Chief decided whether the case should be formally tried, no great harm would be done. But it is not so. The Commander-in-Chief at once proceeded to sentence Colonel Kinloch. The duties of a Court of Inquiry have been compared with those of a Grand Jury, who decide whether there is primâ facie evidence for the solemnities of a formal trial. But the analogy is altogether false. Whoever heard of a Judge pronouncing sentence on the statement of a witness before a Grand Jury? But that is precisely what the Commander-in-Chief did in this instance in his capacity of judge. I think that there is no one who does not agree with the words of "Clode's Military and Martial Law," page 199. Speaking of these Courts of Inquiry he says—Before anyone is prejudiced by the result, it would appear desirable, if not demanded by justice, that the decision of the judge be communicated and an opportunity of explanation be afforded to him.The sentence only was communicated to Colonel Kinloch. Neither he nor the Court before which he appeared were ever informed that there was any charge against him. Meantime, circumstances had combined to place the Commander-in-Chief in a position which it is not at all desirable for a Commander-in-Chief to find himself, namely, that before he assumes the position of judge he had heard the ex parte statement of a relative of one of the subalterns principally concerned. From the moment that the 621 Commander-in-Chief had ordered a Court of Inquiry he had assumed judicial functions. I hope that the noble Earl the Under Secretary of State for War will be able to assure the House that after the 12th of December the Commander-in-Chief allowed no more ex parte statements on the merits of the case to be made to him, but confined himself entirely to the channel of information he had himself chosen, namely, the Court of Inquiry. I ask for this assurance because the following facts have come to my knowledge. On the 17th December—that is, two days after the Court of Inquiry had reported, but nearly a fortnight before the decision of the Commander-in-Chief was announced—Lord de Saumarez called on the second lieutenant of the 1st Battalion Grenadier Guards, and informed him that he had come to see his father, but that as his father happened to be out he would do as well. The purport of the noble Lord was to ask if the officer's father had anything to say upon the case which was then proceeding in the Grenadier Guards because, if so, the noble Lord would undertake to lay it before the Commander-in-Chief without the information going first before the colonel of the regiment, and in this way the name of the officer would be left out of the matter. I should add that the officer, with a true sense of discipline and of loyalty to his commanding officer, refused to have anything to do with such a transaction. I make no comment upon this incident, but I cite it to show the grave disadvantage of departing from Section 42 of the Army Act.Compare, my Lords, the security for the just exercise of the discretionary powers of a Judge and of a Commander-in-Chief. A Judge is a public man in a great and conspicuous situation. Nothing that he does is done in a corner, and in that publicity lies the security for the just exercise of the discretionary power of a Judge. The Commander-in-Chief bases the exercise of his discretionary powers upon a haphazard collection of irresponsible statements made before a secret Court, and upon the information privately conveyed to him by the relatives and friends of officers concerned, the whole transaction being veiled in secrecy, and, moreover, being final and 622 subject to no appeal. Sub-section M. reads—
An officer or soldier who is tried by Court-martial in respect of any matter or thing which has been reported on by a Court of Inquiry, and, unless the Secretary of State sees reason to order otherwise, an officer or soldier whose character or military reputation is in the opinion of the Secretary of State affected by anything in the evidence before, or in respect of, a Court of Inquiry, shall be entitled to a copy of the proceedings of the Court, including any report made by the Court, on payment of the actual cost of the copy required, not exceeding 2d. for every folio of seventy-two words.Under this Section Colonel Kinloch applied on the 12th January for a copy of the Report. On the 15th January he was officially informed in answer that no Report had been made, but on the 20th January a copy of the Report was forwarded to him without comment. Can the noble Earl assure me that the Report was ever read, because, if so, how could its existence be officially denied? Further than this, the Report of a Court of Inquiry is only furnished to officers whose character or military reputation is in the opinion of the Secretary of State affected by its contents. But the whole proceedings of the Court of Inquiry were conducted on the instruction that such was not the case. The Secretary of State in his place in Parliament on 5th March stated:—The General Officer Commanding the Home District at once assembled a regimental Court of Inquiry. The character of Colonel Kinloch was not in question.The noble Earl, the Under Secretary of State for War, as I have reminded him, wished a short time ago to emphasise the fact that Colonel Kinloch had been heard before the Court of Inquiry. I now wish to emphasise in your Lordships' House the nature of that hearing. Colonel Kinloch then was deprived of that hearing to which he was entitled under the Rules of Procedure. The statement which he made before the Court, and upon which his sentence was based, was made under the assurance conferred by the provisions of an Act of Parliament that it could not be used to affect his military reputation. The Court itself was misinformed as to the real point of their enquiry, and therefore did not conduct their examination of witnesses in the way they would 623 otherwise have done. Colonel Kinloch was never heard in his own defence at all, as the noble Earl implied he had been. He appeared before the Court only as a voluntary witness, and not as a person charged, or to be heard in his own defence. Both he and the Court had been assured that there was no charge against him. In consequence of a debate in the House of Commons in April, 1901, on Courts of Inquiry, the right hon. Gentleman the Secretary of State gave the following promise to Parliament—I will take care to make Courts of Inquiry more formal and to give to each officer the fullest possible opportunity of being heard in his own defence.That is a very distinct pledge given to Parliament. Why has it been so totally disregarded in the case of Colonel Kinloch? In criminal proceedings you warn a prisoner that his statements may be used against him, and without that warning you cannot use them in evidence. But in military proceedings an officer is assured by the provisions of an Act of Parliament that his statements cannot be used against him, and then the Commander-in-Chief bases his sentence upon them. I beg to ask the noble Earl the following questions. Why were the Rules of Procedure disregarded in Colonel Kinloch's Court of Inquiry? When a Court of Inquiry has been irregularly held, is there any appeal? If there is no appeal, then on whose authority can the Army Act be dispensed with, and of what value is the Army Act to officers and men under our present military administration? It is obvious from the statement printed by the War Office that there was direct conflict between Colonel Kinloch and Lieutenant Leveson-Gower on a matter of fact. Colonel Kinloch states that when Lieutenant Leveson-Gower was asked for his reasons, he said—When you censured me some weeks ago for absence without leave and disobedience of orders, you said to me that you were going to hand me over to the senior subaltern to be dealt with, or words to that effect. This statement was untrue, as the Adjutant can prove.The circumstances which led to that interview in the orderly room, the previous conduct of Lieutenant Leveson-Gower, and the reasons which induced 624 Colonel Kinloch to ask the senior subaltern to use his influence with Lieutenant Leveson-Gower as regards his general conduct, none of these essential points appear in Colonel Kinloch's published statement, because both Colonel Kinloch and the Court had been assured that the statement he was making as a witness would not be used to affect his military reputation, and was in no sense a statement made in his own defence. I have myself been the senior subaltern of a battalion in the Grenadier Guards, and have been told by senior officers of the regiment to remonstrate with the junior subalterns on their general conduct. The custom of thus appealing to the influence of senior subalterns was the custom of the regiment when I joined it a quarter of a century ago. It was in accordance with that system, for the existence of which Colonel Kinloch is most certainly not responsible, seeing that it existed in the regiment long before he joined, that he asked the senior subaltern to use his influence with Lieutenant Leveson-Gower. Now, in civil proceedings where evidence is thus conflicting, the greatest possible weight is put on the impression formed by the Judge, who has had the witnesses before him, observed their demeanour, and decided which of the two statements is to be believed. The three officers who composed the Court, and had the witnesses before them and observed their demeanour, had formed their opinion and recorded it in writing. Their opinion did not coincide with the opinion of the Commander-in-Chief.
§ THE UNDER SECRETARY OF STATE FOR WAR (The Earl of HARDWICKE)What document is the noble Duke referring to? A Court has no right to express an opinion.
§ THE DUKE OF BEDFORDThe Court did express an opinion, and in writing.
§ THE EARL OF HARDWICKEI think not.
§ THE DUKE OF BEDFORDI think the noble Lord will find that they did issue a report, and their opinion did not coincide with the opinion of the Commander-in-Chief, who had not seen the witnesses 625 or heard them make their statements, but who had seen the relatives of officers concerned and had heard their ex parte statements on the merits of the case. Their report was sent to Colonel Kinloch. He is entitled to use it for his own advantage. But now arises another hardship inseparable from secret Courts. The report affects many other officers besides Colonel Kinloch. Officers respect the private character of the report and proceedings of a Court of Inquiry because they know that, according to the terms of their contract with Parliament, such reports are private and sacred from publication. In another place the Secretary of State for War condemned Colonel Kinloch on the proceedings of the Court of Inquiry. But not a hint did the right hon. Gentleman drop that the report of the Court was favourable to Colonel Kinloch. There is a rule known to everyone, that documents quoted by Ministers must be laid upon the Table of the House. Every man is assumed to intend the necessary consequences of his action. The Government quoted Colonel Kinloch's statement as a witness, and as a foreseen and necessary consequence the statement was published, in spite of the Army Act, which says that no statement made at a Court of Inquiry is admissible as evidence against an officer.
Let me again remind you of the circumstances under which Colonel Kinloch made the statement published by the War Office as evidence. It is the statement of a willing witness, not made upon oath, not made under legal compulsion. It is the statement of a witness who has been assured that his own character is not the subject of inquiry before the Court. It is a statement made by him under the most solemn pledge of confidence conferred by the provisions of the Act of Parliament to three officers well known to him, and is thus couched in language of familiar conversation. Such, then, is the statement which the War Office held out to Parliament and the country as if it were the legal evidence of a man knowing himself to be on his trial before a formal tribunal. I am constrained to say that that publication amounts to a misrepresentation on which I cannot refrain from commenting, and from 626 asking whether this infringement of the Army Act entailing a breach of confidence can be justified by the noble Earl, the Under Secretary of State for War? If anything further is needed to discredit these secret Courts of Inquiry, it would be this action of the War Office. Parliament is aware of the injustice which such secret Courts may perpetuate, and has provided safeguards in the various sub-sections which I have quoted. But are these safeguards provided by Parliament to be swept away at the caprice of the War Office? Remember, my Lords, that without such safeguards Courts of Inquiry violate the principles of Common Law, because, as Lord Coke said—
A man may be unjustly accused and shall be without remedy, or defamed and not have any traverse of it.These words were true of Courts of Inquiry as they were 300 years ago. They are equally true now of the Court of Inquiry as conducted by the War Office in the case of Colonel Kinloch. They are true to-day, because the Commander-in-Chief and the Secretary of State for War have disregarded the explicit terms of the Parliamentary contract, and violated the Rules established by Parliament for the vindication of the character and military reputation of officers in His Majesty's Army. I beg to ask the Question standing in my name.
§ THE EARL OF HARDWICKEMy Lords, I feel that the House will sympathise with me in having to reply to the speech that has been made by the noble Duke, based as it has been on a Question consisting of about six lines, and to answer which would not have occupied many minutes of your Lord ships' time. There is no suggestion in the notice of the Question that the case of Colonel Kinloch would be introduced, and I had a hope, which I believe is shared by the House and the public, that that case had passed from the political arena. The noble Duke has spoken at some length on highly technical matters, and I think I am justified in strongly protesting at the noble Duke's not having done me the courtesy of giving me notice of the subjects with which he was going to deal, because, in 627 a question of this kind, with which dates, regulations, and sections of Acts of Parliament, and Rules of Procedure are concerned, it is obviously necessary to prepare, and carefully prepare, the reply. The noble Duke has availed himself to an unusual extent—indeed, to a greater extent than I have ever heard before in this House—of the licence the House allows, and I ask indulgence if I do not attempt to follow the noble Duke through all the points he has raised, in an endeavour to dispose of some of the sinister suggestions he has made against the War Office and the Commander-in-Chief in respect to the treatment Colonel Kinloch has received. The noble Duke, in discussing Sections 42 and 27 of the Army Act found an opportunity for introducing the name of Lieutenant Leveson-Gower, and stating that that officer had made a false statement, and ought to have been proceeded against under these Sections.
§ THE DUKE OF BEDFORDI beg the noble Earl's pardon. I said that an officer preferring a complaint, whether he makes a false statement or not, should do so under the Section.
§ THE EARL OF HARDWICKEI respectfully submit that the noble Duke suggested that Lieutenant Leveson-Gower made a false statement, and from what he said it would be inferred that that false statement was a serious one.
§ THE DUKE OF BEDFORDI stated that Lieutenant Leveson-Gower admitted making a false statement; he did so in the presence of many witnesses.
§ THE EARL OF HARDWICKEI wish to do the officer the justice of explaining that Lieutenant Leveson-Gower, when asked why he had not complained to his commanding officer of the treatment that certain officers had received in the Grenadier Guards, said—and this is the "false statement"—that he believed Colonel Kinloch was aware of this treatment. But when Colonel Kinloch said he had no knowledge of what was going on, Lieutenant Leveson-Gower said—
I am sorry I made the statement, I admit I was wrong.I do not think the noble Duke is entitled to refer to that as a false statement made against a commanding officer. 628 I think the noble Duke will recognise that the charge against Lieutenant Leveson-Gower is not so serious as he has led the House to believe. With regard to the particular case of the Court of Inquiry, to which the noble Duke referred, I would like to explain that when matters connected with the Grenadier Guards were first brought to the notice of the Commander-in-Chief, he directed the adjutant general to give instructions to Sir Henry Trotter, commanding the Home District, to make an inquiry into all the circumstances. He did not order him to appoint a Court of Inquiry, he merely asked him to inquire and report to him as to what truth there was in the statement made by Lord De Saumarez and Lord Belhaven. The Commander-in-Chief had every intention of appointing a formal Court of Inquiry at Aldershot, but in the meantime the adjutant-general had given Sir Henry Trotter these instructions. Sir Henry Trotter was asked to inquire into the general question of the discipline in the regiment, in reference to officers and to the chain of responsibility; whether within the period of the then commanding officer's tenure of command there had taken place punishments by officers of their comrades, the cause and nature of the punishment, and the names of all concerned; to what extent he (Sir Henry Trotter), or other officers in authority, were aware of what was going on; what steps had been taken, and what decision had been come to, by other commanding officers in connection with these matters; and to report as regards the present case upon all the circumstances in detail. Sir Henry Trotter thereupon, on his own responsibility, formed a regimental Court of Inquiry, and within two days the evidence of the Court was placed in the hands of the Commander-in-Chief. The noble Duke referred to the recommendations of the Court.
§ THE DUKE OF BEDFORDThe report.
§ THE EARL OF HARDWICKEThe Court made no report.
§ THE DUKE OF BEDFORDThe noble Earl must be in error, for a report was sent to Colonel Kinloch and I have seen it.
§ THE EARL OF HARDWICKEI presume that the noble Duke is referring to the covering letter forwarding the proceedings of the Court.
§ THE DUKE OF BEDFORDNo, to the report of the Court itself—the report signed by the President.
§ THE EARL OF HARDWICKEI can find nothing to indicate that there was any recommendation or report. Indeed, I would point out to the noble Duke that a Court is specially forbidden to make any report.
§ THE DUKE OF BEDFORDI cannot help that. The Court did make a report—that report was sent to Colonel Kinloch, and I have seen it.
§ THE EARL OF HARDWICKEIt is very difficult for me to deny what the noble Duke says. I cannot quote, because I am not prepared to lay the document on the Table of the House. I can only say that a Court of Inquiry was appointed by Sir Henry Trotter to inquire into the matters which I have read, and that there was no finding and no recommendation of any sort or kind in the report of the Court of Inquiry. There was merely a covering letter from the general officer commanding. With regard to the point that the officer ought to be present during the hearing of the Court, I would observe that the general reference to Sir Henry Trotter and the Court of Inquiry he appointed would have necessitated every officer in the regiment being present during the inquiry.
§ THE DUKE OF BEDFORDWhy not?
§ THE EARL OF HARDWICKEThe Court of Inquiry, I presume, would have been perfectly willing to allow Colonel Kinloch to be present, but he made no such request.
§ THE DUKE OF BEDFORDColonel Kinloch did not know what was going to happen.
§ THE EARL OF HARDWICKEColonel Kinloch had every opportunity of being present during the proceedings of the Court if he had wished to avail himself of that right. He did not 630 and, so far as I understand, there was no reason why he should, because there was no direct charge framed against him. It was merely a general inquiry as to matters connected with the regiment. I now come to the most important point in the remarks I have to address to your Lordships on this matter. The noble Duke has asked how it is that the Commander-in-Chief could override Sections of the Act of Parliament, Rules of Procedure, and Regulations by sentencing Colonel Kinloch on the statement which he made, not upon oath, but as a witness before the Court. The Commander-in-Chief did not take action on anything contained in the Army Act, or on any of the regulations to which the noble Duke refers. He acted on the Royal Warrant, Section 98, which provides that should it be considered desirable in the interests of the service to remove an officer from full pay for causes other than misconduct, it shall be in the power of the Secretary of State, upon the recommendation of the Commander-in-Chief, to place such officer, if he is entitled to half-pay, on the half-pay list, subject to Article 308, which merely refers to the question whether half-pay is to be reduced or not. I do not think anyone will deny that it is absolutely essential that the Commander-in-Chief should have that authority. It is an authority which exists in the Navy, in the Civil Service, and in every business concern. The noble Duke asks whether the Commander-in-Chief has power to pronounce sentence. Of course he has not the power to pronounce sentence—that is, to sentence an officer to fourteen days or three months imprisonment, That is quite another matter, which has nothing to do with the course of action taken by the Commander-in-Chief. The Commander-in-Chief acted, as I say, under the Royal Warrant. Every Commander-in-Chief has had to act under that Warrant over and over again, and to suggest, as the noble Duke does, that the Commander-in-Chief exceeded his authority in having accepted Colonel Kinloch's own statement as to the condition of the regiment, and having acted upon it is, I think, going a little further than the noble Duke would go were he not an old Grenadiersman. I cannot help remarking that it is curious that we should to-night have been listening to the noble Duke explaining to the 631 House his views as to the amount of authority which should remain vested in the hands of the Commander-in-Chief when it is not so very long ago that he was pointing out in this House that the Commander-in-Chief had not sufficient authority for the proper discharge of his duties. I have merely to say, in conclusion, that, if the noble Duke wishes me to give a more detailed reply to the various questions he has addressed to me this evening, I must ask that notice should be given and the questions placed on the paper.
§ EARL SPENCERI do not propose to enter into the details of the extremely technical, but, as it seems to me, highly important matter which has been brought before the House by the noble Duke, but I rise to ask His Majesty's Government whether it would not be more conducive to a thorough knowledge and understanding of the matter that the debate should be adjourned than that it should proceed now. The noble Duke has made an exceedingly able and important speech; he has brought forward some very strong arguments in support of his attack on the action of the Commander-in-Chief and the manner in which the Court of Inquiry has been held. How has that been met? I do not, for a moment, say that the noble Earl has not met it as well as he possibly could, but he began his speech by saying that he was not in the least degree aware that the particular case to which the noble Duke referred were going to be made the subject of debate to-night. He said he could have answered the Question as it stood on the Paper in a few words, but that it would be extremely difficult for him to answer forthwith the detailed attack which had been made. Moreover, the noble Earl has been repeatedly contradicted on matters of fact. In the circumstances I venture to think we ought to have a further declaration on the matter. So far as I am able to judge, I hardly think the answer that has been given is a complete answer to the noble Duke. It is not always necessary for the Commander-in-Chief to be in his place, to answer any particular attack himself, but it was the case the other day that Lord Roberts came down to the House, and replied on his own behalf in 632 a matter that was then brought up. I understand from the noble Earl that no one anticipated that the particular questions referred to would have been brought forward, and in all the circumstances, the Government not being in a position to satisfactorily and thoroughly reply to the statements made, I think the discussion should be adjourned.
§ THE LORD PRESIDENT OF THE COUNCIL (The Duke of DEVONSHIRE)On behalf of the Government I should certainly object to the simple adjournment of the debate. As a matter of fact, there is no question on which the adjournment could be moved. I think my noble friend the Under Secretary of State for War and His Majesty's Government have very great reason to complain of the course which has been taken by the noble Duke, who put on the Paper one or two abstract questions of a kind which it would have been perfectly simple to deal with, and then made a long and elaborate statement as to matters of which he had not given the smallest notice. I am perfectly willing, if the noble Earl opposite, or if any Member of the House desires, to discuss further the case of Colonel Kinloch, the treatment which he received and the whole history of the case, on the understanding that ample notice is given specifying the documents and the principal facts to which it is desired to call attention.
§ THE DUKE OF NORTHUMBERLANDI should like, after the speech we have just heard, to know in what position we stand. The noble Duke has told us that this is the case of Colonel Kinloch.
§ THE DUKE OF DEVONSHIREWhich Duke are you referring to?
§ THE DUKE OF NORTHUMBERLANDThe noble Duke below me (the Duke of Devonshire) has said that this is the case of Colonel Kinloch.
§ THE DUKE OF DEVONSHIREI said that the case which has been brought forward by the noble Duke, the Duke of Bedford, was the case of Colonel Kinloch.
§ THE DUKE OF NORTHUMBERLANDTo my mind, and, I think, to the minds of many of your Lordships, this is the case of His Majesty's Government and the Commander-in-Chief. Colonel Kinloch's name has necessarily been introduced into it, but the question is not whether Colonel Kinloch did or did not do particular things, or whether he has or has not been properly punished. That would be the case of Colonel Kinloch. In this case the real issue is whether His Majesty's Government, the Secretary of State for War and the Commander-in-Chief have utterly disregarded Acts of Parliament and the regulations of the Service and substituted a procedure of their own which gives the accused no chance of fair play. The question which the noble Duke asks, and which I should have thought was fairly expressed, was whether this was legal and whether it had the approval of your Lordships' House. It appears to me to be something like an attempt to, vulgarly speaking, draw a red herring across the scent for His Majesty's Government to protest, after the speech of the noble Duke, that they were not prepared to go into all the circumstances of Colonel Kinloch's case. I should like to ask if the Government are unprepared at the present moment to answer the two or three plain questions submitted, and to which I must say the Under-Secretary has not yet replied. The Army Act lays down a certain course of procedure—that when an officer has anything to complain of he should report to his commanding officer, and he is at liberty, if he cannot get satisfaction from his commanding officer, to request that his complaint may be forwarded to the highest authority. I would ask His Majesty's Government this plain question—Why, when these noble Lords came to the Commander-in-Chief with a complaint, did he not follow the usual, the plain and straightforward, course? Why did he not say, "If the officers have anything to complain of let them make their report to the commanding officer of the battalion, and, if he cannot satisfy them, let the complaint be forwarded to me? "Why was that course not adopted? The only shadow of a reason which has been alleged is this, that one of the noble Lords who went to the Commander-in-Chief discovered that one of these subalterns was to be dismissed from the battalion within a very few 634 days. That is no reason at all, for the Commander-in-Chief could very well have stopped any action of that sort by a telegram until the officer had had an opportunity of making his complaints in the usual course. That is one perfectly inexplicable feature in this case, and one which I should have thought His Majesty's Government, without much preparation, might have managed to answer. Now, my Lords, what are the evils which His Majesty's Government have brought about by this course of procedure? The Secretary of State for War waxed very indignant over the charge suggesting that he and the Commander-in-Chief had been influenced by the rank and social position of the complainants. That is not an accusation which will be made in this House; but can the Secretary of State for War wonder very much if those who have not the fine feelings which possess him, and which, no doubt, possess your Lordships, should conceive some sinister suggestion when, in the absence of all possible and conceivable reasons for not adopting the usual course, the Commander-in-Chief goes out of his way to adopt an unusual course? I think it is most undesirable that great officers of State and distinguished officers of the Army should do anything which, even to the most uninstructed, should lead to the belief that they are actuated by anything but the high motives by which we know them to be actuated. That is in itself a reason why your Lordships should demand to know why the Commander-in-Chief departed from the usual course open to him. Then we have exactly the same question as to the reasons for the Court of Inquiry instituted by Sir Henry Trotter.
§ THE EARL OF HARDWICKEI have told you.
§ THE DUKE OF NORTHUMBERLANDThe noble Earl says he has told us. I do not wish to misrepresent the noble Earl, but, as far as I could gather, I understood him to say that it was a blunder of the adjutant-general's.
§ THE EARL OF HARDWICKEI told the House that the Commander-in-Chief, through the adjutant-general, asked the officer commanding the Home District, Sir Henry Trotter, to report, him as to 635 whether there was any truth in the statements made by Lord Belhaven and Lord De Saumarez; that Sir Henry Trotter, perfectly within his rights, and on his own responsibility, summoned a regimental Court of Inquiry which took evidence from all the officers concerned, and that Sir Henry Trotter within two days forwarded that evidence, including the evidence of Colonel Kinloch, to the Commander-in-Chief.
§ THE DUKE OF NORTHUMBERLANDWhat I want to know is, was that what the Commander-in-Chief intended, or was it not? If it was the intention of the Commander-in-Chief to investigate this by a Court of Inquiry, what we want to know is whether the career of an officer is to be at the mercy of the finding of a Court of Inquiry, at which he has no right to be present, and to cross-examine witnesses, and at which he is asked to make a statement as a witness, and is then, as the noble Duke fairly pointed out, condemned upon his own evidence? Is this fair play? So far as I understand, it is not military practice. I hope it is not; but, if it is, so much the worse. It is not fair play. The noble Earl the Under Secretary spoke as if being put on half-pay was merely an arrangement which everybody admits must be in the power of the Commander-in-Chief. The discretion of the Crown to deal with an officer, on the advice of the Commander-in-Chief, without giving any reasons of any sort or kind is a power which must exist; but this is a different case. Here is a case where there is an inquiry, and at that inquiry charges are made which the officer has no possibility of rebutting. I maintain that a man should not be dismissed upon accusations and charges which he has no power of rebutting.
§ THE EARL OF HARDWICKENo charges were made.
§ THE DUKE OF NORTHUMBERLANDThen why was he retired? He was retired because, in the opinion of the Commander-in-Chief, he was unfit to command the regiment. Is not that a charge?
§ THE DUKE OF NORTHUMBERLANDNot a charge when it is stated on the evidence of a Court of Inquiry, that an officer is unfit to command a regiment? Well, I have never had the honour of serving in the Army, but I think we all have some idea of the abstract principles of justice, and I do say that a man has no right to be condemned—and to deprive a distinguished officer of the command of his battalion is to condemn him—on evidence taken before a Court of Inquiry—and if the action taken was not on the evidence given before that Court of Inquiry there was no reason for holding the inquiry—when he was not present, had no power to cross-examine witnesses, and, indeed, had no locus standi before that Court at all. The noble Earl said that if Colonel Kinloch had asked he would no doubt have been allowed to be present. He did not ask to be present because he did not know that these strange consequences were going to follow from the holding of the Court of Inquiry. The noble Duke behind me has already told your Lordships that a Court of Inquiry for many purposes occupies the position of a grand jury, and I do say that it is not justice, whether it be a practice or not—and I do not believe it is a practice—that a man, on the finding of a grand jury, that is to say, on the finding of a Court at which he is not present and cannot cross-examine witnesses, should be visited by any penalties. I hope this matter will not be allowed to rest, and that some noble Lord who is better acquainted than I am with the details of the Service, and who possesses the knowledge which military experience alone can give, will raise this point later on in some form or other, and pursue it to a conclusion. This question is not raking up again the case of Colonel Kinloch. It is a question of the procedure of the Army, and whether the Commander-in-Chief and the Secretary of State can or cannot override Acts of Parliament and the whole custom of the Army. If they cannot—and I believe they cannot—I think it must be admitted that there has been a gross miscarriage of justice. I believe I am right in saying that, when a private soldier is tried by Court-martial, if it is afterwards found that that Court was improperly constituted, the sentence is annulled, and the man goes free. I 637 cannot see why, in justice, the same treatment should not be meted out to officers. The serious part of the case is that it affects the position of every officer in the Service. There has been a great deal of nonsense talked of late outside, about its being necessary that officers should not think they had a vested interest in their commissions. The question is not whether they have a vested interest in their commissions, but whether the Army is a profession which a man can look forward to with a certainty that so long as he keeps within the four corners of the Acts of Parliament which govern the powers and authority of his superiors, he is safe; or whether, on the other hand, he is to be at the caprice of any Commander-in-Chief or Secretary of State. I trust this matter will not be allowed to rest.
§ THE LORD CHANCELLORThe specific question sought to be raised by the noble Duke ought to be placed on the Paper and notice given of it in terms. For a considerable time, under the form of an abstract question, the House has been discussing facts which are in dispute. What specific charges is it desired to make against the Commander-in-Chief, the War Office, and the Government? If it is true that a person has been punished without being heard, no one will say that it was a proper thing; but if that is the allegation, why is not a Motion brought forward challenging the Act? As it is, the discretion of the Commander-in-Chief has been challenged, without any notice being given. If the matter is to be discussed at all, it ought not to be in this interjectional form of abstract questions. The noble Duke's Question on the Paper assumes that judicial procedure is applicable to matters to which it is not applicable; that sentence was pronounced unjustly; and that what a man had said was not evidence against him. I should have said that one of the best sources of evidence in the world was what a man said. Knowing nothing about the particular case in question, and speaking only in the abstract I should say that if I were Commander-in-Chief, and had to form an opinion on an officer's fitness to command, the fact that that officer was found to give evidence in such a way as 638 to prove his unfitness would be sufficient for me, without any other form of procedure. I do not say that that was the case in this instance; but it shows the unfortunate way in which the subject has been introduced. Let the noble Duke submit the broad proposition that Colonel Kinloch has been ill-used, and that the Commander-in-Chief has disregarded the Regulations. The abstract question before the House can lead to nothing but loose discussion, in which all are at cross-purposes, and one person does not understand the allegation denied by another. Nothing that has occurred precludes the possibility of the question being raised on specific allegations, when your Lordships would be able satisfactorily to discuss it.
§ THE MARQUESS OF RIPONI agree with much that has fallen from the noble and learned Lord on the Woolsack, but I would impress upon your Lordships that it is absolutely impossible to leave the question where it stands, if only in justice to the Commander-in-Chief. No official answer to the serious detailed charges which have been brought against the Commander-in-Chief has been made on behalf of His Majesty's Government. I do not blame the noble Earl the Under Secretary for that, because the notice on the Paper was, no doubt, so vague that he had not an opportunity of preparing an answer, but those charges are of the gravest kind, and it is necessary in justice to the Commander-in-Chief that some reply should be made.