DEFENCE OF THE REALM CONSOLIDATION BILL. (Hansard, 27 November 1914)

§ THE LORD CHANCELLOR
My Lords, as your Lordships are aware from the discussions which we have recently had, the Defence of the Realm Acts enable certain Regulations to be made within the powers which the Statutes confer. This is a Bill, founded upon our experience since the war, which proposes to extend somewhat the powers which the Defence of the Realm Acts confer for making Regulations, so as to enable certain evils to be reached which are not adequately reached under the present system. If this Bill passes there will be larger powers in the hands of the authorities who deal with the matters arising under this legislation.
205 The Bill re-enacts the two Defence of the Realm Acts of last session in order to embody four amendments which are asked for by the Admiralty and the War Office. First, it aushorises the trial by Court-Martial of all offences against the Regulations. At present most offences against the:Regulations—all except those under Regulations dealing with the prevention of communication with the enemy and the obtaining of information and the spread of alarming reports—can only be tried by Court-Martial if committed in, or in respect o, a defended harbour or proclaimed area. As the greater part of the South and East of England and large parts of Scotland and Ireland have been included in proclaimed areas the extension will not be great, but it affects some important localities. In the second place, the power of making Regulations is expressly extended to the regulation of navigation and pilotage of vessels. In the third place, trial by Courts of Summary Jurisdiction is authorised as an alternative procedure to trial by Court-Martial in the case of minor offences. Under the present Acts it is not possible to impose any penalty for many offences committed outside defended harbours and proclaimed areas, and even when a penalty can be imposed the offences are often so comparatively insignificant that trial by Court-Martial, which ought to be reserved for serious military offences, is out of the question. Many breaches of the Regulations can therefore be committed with impunity. In the fourth place, the punishment of death is authorised in cases where an intention to assist the enemy is proved. At present Military Courts can impose sentence of death for war crimes, but war crimes can only be committed by enemy subjects. The same offence if committed by a British subject or a neutral could not, under the existing Acts, be punished by death upon trial by Court-Martial.
What we wish is to have the deterrent power of being able to try by Court-Martial not merely for war crimes, for which capital punishment can be inflicted in the case of alien enemies, but in the case of people who are as bad as and even worse than alien enemies—that is to say, people who are assisting the enemy. Take, for example, such an instance as that of a subject of this country selling himself to the enemy for the laying of mines off the coast. That is a very wicked offence, worse by far than an offence by an alien enemy, and such a person ought to be, if he is taken redhanded 206 in the act, liable to be tried by Court-Martial and to have capital punishment inflicted. It is the deterrent effect of this procedure which is important. That the Government are fully alive to the great importance of seeing that injustice does not occur will be present to the minds of those who followed the proceedings in the case of the spy Lody, an alien enemy who was not only tried the other day by Court-Martial but tried in public. Whether-that was altogether necessary I do not know, but the utmost care was exercised in the proceedings.
In all these capital cases what we do is this. We ask the Public Prosecutor to assist the military authorities by investigating the facts. Counsel are assigned when the prisoner cannot provide them, and the utmost care is taken. But the important point is, as I have said, that we should have the power of being able to treat British subjects doing any of these acts as being in no better position than an enemy alien. It is only in connection with crimes committed with the intention of assisting the enemy and contrary to the Regulations which relate to military matters that the offence comes in. We think it important that we should possess this deterrent power. Therefore the Government ask the House to agree to the passing of this Bill, with the assurance to your Lordships that the greatest care will be taken to see that injustice is not done.

§ EARL LOREBURN
My Lords, I am quite satisfied that power ought to be given to prevent acts which are dangerous to public safety. Upon that I am sure everyone will be agreed. But the point is, Who are to try those who are accused of these offences? That is the sole question Power is given under this Bill to CourtsMartial—that is to say, to the ordinary military law that prevails in a conquered country or where soldiers alone have authority—to try British subjects instead of their being tried by the ordinary tribunals of the land. A good many of the offences under the Bill would constitute high treason, which is the highest form of guilt known to the law. If any of them had been committed with intent to assist the enemy, under this Bill the punishment may be death; and I think that for the commission of any of these acts with the 207 intention of assisting the enemy the appropriate penalty would be the capital punishment. Short of that, the Court-Martial is empowered to inflict a sentence of penal servitude for life or any less term of imprisonment. I am aware that in some cases a Court-Martial may be the only Court that is suitable and the only Court available. In such circumstances there is nothing for it except to allow Courts-Martial to try these cases, the serious ones of which are high treason of the ordinary kind.
But that is not the proposal in this Bill. The proposal here is that when Courts of Law— either magistrates, or quarter sessions, or a Judge and jury—are available, when they may be sitting within fifty yards and have all the jurisdiction and all the power to inflict capital punishment or any other punishment according to their discretion, they should be superseded, not in all cases, but according to the discretion of the Government. If they think proper the Government may deprive any British citizen of his right to be tried by the ordinary tribunals of the land, although those tribunals may be sitting, as I say, within fifty yards of the place where the Court-Martial, which may be held in secret according to their law, is being held. This Bill, therefore, places at the option of the Executive the power to deny to any British subject when they think fit the right which he now has to have the trial for his life before an ordinary tribunal.

§ THE LORD CHANCELLOR
I think my noble and learned friend is under the impression that this Bill introduces that power. It is not so. Under the two Defence of the Realm Acts which have already been passed that power now exists. We are in a state of war and are fighting for our lives as a nation, and have to take exceptional powers. The only change that is made by this Bill is that the death penalty may be imposed.

§ EARL LOREBURN
That is my point. It is a very dangerous thing to take away right of trial and hand it at your own discretion to military officers, even though the penalty of death may not be inflicted. But this Bill proposes to place the life of the British subject at the mercy of a military Court-Martial, even though the Court of Assize may be sitting within fifty yards. I think that is very much to be regretted. If it could be shown that the 208 Courts of Law were not available or that they were not deserving of confidence, then I could understand this power being asked for; but I do not think you ought to give this power during the time when the Courts are available and are quite as able to do justice as they have been at any period during the last hundred years. Therefore I beg to intimate that when we reach the Committee stage or after the Third Reading I shall propose this Amendment— Any British subject who has not accepted military or naval employment shall have the right, if he demands it, to be tried by the ordinary Courts of Law for any offence punishable under or by virtue of this Act if such Courts are available, and all such Courts shall have jurisdiction to try any such offences in accordance with Regulations to be made from time to time by Order in Council. It is quite true that in the earlier Acts which were passed some two or three months ago great powers were given to Courts-Martial short of that of imposing the penalty of death. At the same time we know the circumstances under which those measures were passed, and I think it would have been better if in those Acts as well there had been the power for a British subject to come to the Courts of Law if they were available.

§ THE EARL OF HALSBURY
My Lords, I must say that if my noble and learned friend goes to a Division on his Amendment I shall certainly vote with him. I see no necessity for getting rid of the fabric of personal liberty that has been built up f[...]r many generations. Although there are rights which should not necessarily be insisted upon in time of war, it seems to me that this wholesale sweeping away of them is greatly to be deprecated. I hesitate very much to surrender all the liberties and protections which have been built up, as I say, for many generations, just because at this particular time there are some things that you may wish to do more quickly than at any other time. I quite agree that the jurisdiction which an officer has over his own soldiers is such that we ought not to interfere with it, and therefore I should certainly agree to that extent to the giving of this jurisdiction, at the same time reserving the right of any civilian who is not bound by the military oath to claim the right to be tried by a Judge and jury. I believe that a Judge and jury would be perfectly able to do justice in these cases, and I do not think that the liberty of the subject is so trifling a matter that it can be swept away in a moment because some of us are in a panic.

§ VISCOUNT BRYCE
My Lords, I hope that His Majesty's Government will see their way to accept Lord Loreburn's Amendment when he moves it. This is a very grave matter. As the noble and learned Earl who has just sat down observed, British liberties have been built up by the Courts on many precedents throughout many generations, and I am not aware that there has ever been any precedent for such a proposal as is now made by His Majesty's Government. If it were a case of invasion or of civil war, then, of course, the Courts would not be available; but while the Courts are available surely some further reason should be given to us than has been given for such an extraordinary departure as this from all historical precedent. Your Lordships will remember the remarkable case of Lord Kilwarden and Wolfe Tone. When Wolfe Tone, having been taken prisoner as an enemy in the service of France, was tried by Court-Martial and was going to be put to death, a writ of habeas corpus was moved in the Court of King's Bench in Ireland, and Lord Kilwarden, the illustrious Chief Justice at that time, said that as they were not in a state of civil war and there was no enemy in the country the ordinary Courts of Law were in control. He issued a writ immediately for the delivery of the body of Wolfe Tone, and declared that he would sit there until a return was made by the Court-Martial in whose custody Wolfe Tone was. I mention this as a remarkable instance of the sense that was entertained 116 years ago of the great value of this right which a British subject has of being tried by the ordinary Courts of the land, and I regret that His Majesty's Government should think fit to depart from it now. I need not say that we are all heartily and entirely with the Government in desiring to give the amplest power for the arrest and detention of offenders, and we all agree that no crime could be worse than this crime of aiding the enemy if committed by a British subject. The only question is whether the British subject is not entitled, as he always has been in times past, to have the constitutional protection of being tried by a civil Court when there is a civil Court there to try him.

§ LORD PARMOOR
My Lords, I should like to say a few words in support of the view taken by the noble and learned Earl opposite [Lord Loreburn]. The important reason why our judicial form of procedure 210 should be retained is that before you come to the question of punishment you want the person charged to have a full trial, so that the truth may be got at, and, if he is innocent, he may be acquitted. We all know that at periods of panic and in war times there is an amount of prejudice and bias which makes it all the more necessary that every British civil subject should have the rights and protection which not only the Common Law but also the Statute Law of this country have given him over a long series of years. If the noble and learned Viscount on the Woolsack speaks again, I should like him to tell us why the method of ascertaining whether or not a particular British subject, a civilian, is guilty should be altered to what is really his disadvantage at a time like this. We do not want any one who is guilty of an offence of this kind to escape, but we must be very careful to draw a distinction between the guilty and the not guilty, and I in order to ensure that this distinction is drawn we ought to preserve the safeguards which have been established by the experience of centuries and which it is our boast to have preserved. This matter is one of extreme gravity and importance. I do not believe there is any precedent for taking away the rights of a British subject as regards ordinary trial by a jury directed by a skilled Judge. I do not wish to throw any aspersion upon Courts-Martial. The difference between the two bodies is that Courts-Martial have neither the procedure nor the experience that our ordinary Courts have. They have not, in fact, the safeguards that we have built up in the civil Courts in order to protect an innocent man who may be wrongly charged. It is on that ground that I think Lord Loreburn's Amendment ought to be introduced in the Bill. I hope that when the proper time arrives he will move his Amendment, and I, for one, shall certainly support him.

THE EARL OF CRAWFORD
My Lords, the noble and learned Viscount on the Woolsack appears to be opposed in this matter by more than half of the House of Lords in its judicial capacity. I admit that this Bill confers unparalleled powers in respect of life, property, and everything else, but I altogether differ from the noble Viscount opposite who apparently thinks that the menace with which we are threatened to-day is comparable with the menace of Wolfe Tone—

§ VISCOUNT BRYCE
I did not compare the two cases as respects danger, though the danger had been very great in Ireland then. If I had done so, I would have referred to the menace when Bonaparte was threatening this country from Boulogne. It is not suggested that any legislation of this kind was passed in that crisis. I only referred to the case of Wolfe Tone to show how a very great Judge valued the privilege of trial by the civil Courts.

THE EARL OF CRAWFORD
I have no doubt that we all, including the noble and learned Viscount on the Woolsack, value that privilege. But the Government of the day feel that in the present time of crisis the powers asked for in this Bill are essential, and on their responsibility they make this proposal to Parliament. Lord Bryce says it would be all very well in the case of invasion. How does he know that the country may not be invaded next week? Every citizen knows the danger, and upon my soul I have no sympathy with those who prefer to adhere to ancient and honourable privileges of citizenship when they know the incalculable dangers by which we are threatened. This Bill is domestic and internal in its application; it is to reduce and meet dangers at home. In a way the Bill is a measure of the dangers by which the country is confronted—dangers which by one Minister after another have been minimised during the past few weeks in a most remarkable manner. It is a vindication by the Government of those people, who have been called "scaremongers" and all the rest of it, who have thought it their duty to bring forward in Parliament the dangers with which they were acquainted. For myself I am going to support this Bill. I am not in the least afraid of incurring any of the things to which Lord Parmoor referred. He said that soldiers had no facilities, no experience, no legal knowledge or advice of their own, no Court houses even in which to administer martial law—

§ LORD PARMOOR
I said that there were not at Courts-Martial the same knowledge and experience and safeguards as there are in our civil Courts.

THE EARL OF CRAWFORD
We all admit that the equipment of the civil Courts is quite unapproachable. But I am sure the Lord Chancellor will be able to assure the House that there is no intention 212 of taking away from the civil Courts anything which can properly appertain to them. There is one safeguard which I would point out to Lord Loreburn. Soldiers themselves are represented in the Cabinet and would not consent to take over more responsibilities in this direction than they themselves considered necessary for the military welfare of the country. That in itself is a safeguard to which Lord Lore-burn must attach value. I say that this Bill must be enforced, and no opportunity of using it, whether through civil or military Courts, must be neglected. I am myself anxious to make sure of conferring the power to detect more than the power to convict. I do not care in the least whether a man detected of an offence of this kind is hanged by order of a civil Court or shot by soldiers. I hope that the deterrent effect of this Bill will be good. But I do not trust to deterrent effects when we are out against an enemy who is deterred by nothing. I want the equipment of the Government to detect and convict to be strengthened, and with that object I beg to ask the noble and learned Viscount on the Woolsack two questions.
There is a distinction between a British subject proper and a recently naturalised British subject. I have said before in your Lordships' House that in my opinion an alien enemy who was naturalised a short time before the war is more dangerous than any non-naturalised German in this country. It is among naturalised persons of enemy extraction that the paymasters and the agents in this country will be found; they are the greatest danger. I should like to get hold of them. If their naturalisation certificates could be cancelled those men could be dealt with, and if some of them were interned a great danger would be removed. But You cannot now intern a British subject in an alien concentration camp. You have to put him in gaol and try him. Cancel his certificate, intern him, put him out of the way, shut up the paymaster, and you will be striking a blow at one of the chief sources of our difficulty.
The first question I wish to put to the noble and learned Viscount is as follows. Is it not the case that the Police in London have suggested to the Home Office that it would be a good thing if the authorities at the Home Office had the right to withdraw certificates of naturalisation? The second question is this. Are all Government 213 officials to give any assistance they can to the military, naval, and police authorities who are trying to detect these dangers? There was a case within the last few days where a dangerous alien who had been connected with what I have described to your Lordships already—the system of posting letters by hand through neutral ships to neutral countries and thence to Germany—was detected and stopped. His correspondence having been stopped this man has now gone abroad. If a postal official who knew that this man was going abroad had thought that he was entitled to tell the authorities, he would have done so; but as the rules now stand, a man is liable to dismissal if he gives away any knowledge which is obtained through his employment in the service of the Postmaster-General. I imagine that the answer of the noble and learned Viscount will be that the Post Office is a branch of the Government, and that those employed in the postal service are, like soldiers and sailors, servants of the State, and therefore postal authorities are entitled to inform the military authorities of any information which conies into their possession which they think will be to the welfare of the State.

§ THE LORD CHANCELLOR
Upon the first question asked by the noble Earl, I have no information. As to his second question, all Government officials, acting under instructions, are giving assistance where they can to the naval and military authorities in the execution of their duty.

THE EARL OF CRAWFORD
But this was a case where the postal officials could have had no instructions. The information arose unexpectedly.

§ THE LORD CHANCELLOR
The Post Office is very highly organised for this purpose.

§ LORD LEITH OF FYVIE
My Lords, I put a question the other day to the noble and learned Viscount on the Woolsack as to the desirability of an extension of the prohibited and proclaimed areas along the South coast, the West coast of England and Scotland, and the coast of Ireland. That question has not been answered, although a large public meeting requested that this extension should be considered. The Home Secretary has explained that the prohibited areas only extend to the coast of Dorsetshire. Plymouth comes in under the Military Command, and then there is a long gap that goes right round Land's End, Cornwall, and the North 214 Coast of Devon. The North Coast of Devon is apparently a "no man's land." Plymouth will not have anything to do with it, neither will District No. 8, an officer of which at Exeter told me that they would have nothing to do with it. Therefore there is an inconsistency about the powers and they are in conflict. Some chief constables are in favour of one course and some of another. I have been informed unofficially that this matter is going to be taken in hand, but I wish to report to those who have asked me to inquire into it what the prospect is of the prohibited area being extended. The noble and learned 'Viscount said the other day that I did not bring forward cases that I could prove, but merely assertions. I should like to say that I have them but they are in the hands of the police. Scotland Yard has been making investigations, and I thought it desirable that the finesse of the detectives should be brought out before the cases were made public. That is my only excuse for not backing up my assertions by the facts and making them public.
There is one clause in this Bill to which I should like to draw attention, because it is an arbitrary matter and there is not detailed what the consideration is to be. Clause 3 (a) gives power to the Admiralty and the Army Council to require that there should be placed at their disposal the whole or any part of the output of any factory or workshop in which arms, ammunition, or warlike stores or equipment, or any articles required for the production thereof, are manufactured. That is absolutely correct, but it ought to carry with it a certain consideration as to how that should be done. In a great many other countries this is accomplished by settling upon a regular fixed profit over and above the gross cost. Clause 3 (b) gives the Admiralty and the Army Council power to take possession of and use for the purpose of His Majesty's naval or military service any such factory or workshop or any plant thereof. It is not stated what the conditions are to be. It is implied that they are to take possession not under the administration of the firm concerned, but under their own administration. Is that sufficient? Would it not be wiser to put in a small clause making it clear that if the organisation was required to be kept on it should be on the basis of a certain amount of profit to the business over and above the gross cost?

§ THE LORD CHANCELLOR
The noble Lord has asked a question about the extension of the prohibited areas. I would remind him that that is an administrative matter and does not arise under this Bill. As to his second point, in connection with which he suggests an Amendment, I would point out that the two Houses of Parliament adjourn to-day and that if we make any amendment in this Bill, which contains other important matters besides the one to which he has referred, there would be practically an end of it. We are not in a position to discuss the Bill in Committee for we have not the time. If an Amendment were moved and a Division challenged the debate would automatically be adjourned until to-morrow, as there are not sufficient noble Lords in the House for a Division to be taken, and the Bill would certainly be lost. I would appeal to the noble Lord not to place the Government in that position.

LORD WEARDALE
My Lords, it appears to me that the House is called together to-day with a sword of Damocles over its head. Although my noble and learned friend Lord Loreburn may be unable, in view of what the Lord Chancellor has just said, to carry his point on this occasion, I think it is very desirable that the great privilege of a British subject to be tried by a jury should be preserved. This privilege is, by the Bill now before us, being given away without sufficient reason, because any of the acts which it is suggested might be committed, perhaps are being committed at this time—acts of high treason—could be submitted to the civil Courts and tried under the ordinary judicial procedure. I submit that it is a monstrous thing—I can use no other expression—to sweep away one of the most valuable privileges of a British subject at a moment like this.

§ EARL LOREBURN
My Lords, in moving my Amendment I have very little to add to what I have already said, but in view of something that fell from the noble Earl opposite [The Earl of Crawford] I wish to say this. I agree that it is most necessary, especially in the general belief 216 as to the existence of espionage, that the Executive should have power of punishing through the proper tribunals. It is also necessary, when the Courts of Law are inaccessible, that then the military Courts or military tribunals should be able to adjudicate and pass sentence, however heavy the sentence may be—and for some of these offences the sentence cannot be too heavy. As regards that I am in entire concurrence with the noble Earl opposite. But what I say is that when there is nothing to prevent these difficult questions of guilt or innocence being tried before the ordinary tribunals of the realm, the ordinary tribunals ought not to be displaced by military tribunals.
Now I want to say a word with regard to the present situation. We have been placed, as every one must feel, in a very difficult position. This question was never even ventilated in the House of Commons, and as far as I know no one seems to have thought it worth taking notice of at all. The two previous Defence of the Realm Acts were passed in August when nobody was here, and it was all done in a hurry. As I understand, my noble and learned friend on the Woolsack is himself going to move Amendments on a Bill which is to conic before us later this afternoon, and therefore we know the House of Commons is sitting. So why should not my Amendment, if your Lordships see fit to agree to it, be submitted to the judgment of the House of Commons, and, if they agree to it, embodied in the Bill? I can assure noble Lords that I have not the smallest wish to delay or to hinder in any way the salutary proposals there are in this Bill, but merely to provide a safeguard for the protection of British subjects when there is nothing to prevent their being tried before a civil tribunal.

THE MARQUESS OF CREWE
My Lords, we all recognise that the Amendment which has been proposed by the noble and learned Earl below the Gangway is not only important in itself but important from the 217 support which it has received. The fact that not only my noble and learned friend but also two other noble and learned Lords opposite, filling high positions on our Judicial side—to say nothing of my other noble friend the noble Viscount [Viscount Bryce], whose opinion on a matter of this sort carries great weight—have taken this particular view would of itself entitle their presentation of the case to our most careful consideration. My noble and learned friend on the Woolsack has stated the technical difficulties which surround the presentation of this particular Amendment—difficulties connected with the fact that the House of Commons will very shortly be rising in order that the Royal Assent may be given to Bills in this House. I am sorry on that account that my noble and learned friend's Amendment was not in some form or another brought before us sooner.

§ EARL LOREBURN
I spoke to the noble and learned Viscount on the Woolsack about it, but the Bill was only put down this morning.

§ THE LORD CHANCELLOR
I may say that I saw nothing of my noble and learned friend's Amendment until I came into the House. He spoke to me yesterday about the point, but he gave me no notion that he intended moving an Amendment on the subject. It was only when I came into the House this afternoon that I heard about it.

§ EARL LOREBURN
That is quite true. The Bill was given a First Reading in your Lordships' House at eleven o'clock last night, and appeared on the Paper for the first time this morning. Immediately I could consult those whose opinion I valued I framed the Amendment and came clown to the House and sent it in to my noble and learned friend.

THE MARQUESS OF CREWE
I was certainly not uttering any kind of complaint against my noble and learned friend. It is quite true that, as far as the presentation of the Amendment in this House is concerned, he has taken absolutely the first moment for presenting it. My criticism—if it were criticism—was merely directed to the fact that if he had stated in so many words that he felt so strongly on the subject that he would move such an Amendment, my noble and learned friend on the Woolsack would have been placed in an easier position.
218 Here we are told that we are doing something which is a gross invasion of popular liberties and a departure from those main securities for the liberty of the subject which were obtained after a contest with the Stuart Kings. It surely is a significant fact that this measure should have passed the House of Commons in this form without, so far as I know, any protest having been raised from any quarter in that House, that House being supposed—I dare say your Lordships would not admit it—to be more especially the guardian of popular liberties even than we are ourselves. I do not know how noble and learned Lords who take the opposite view will account for that. But so it is. I suspect that the cause was that stated by Lord Crawford in his speech in support of theBill—namely, that it is not feared by those who value popular liberties quite as much as my noble and learned friend that in practice the passing of this particular provision could lead to abuse—it is evidently not feared that we are doing something in the nature of setting up a Star Chamber or a military tribunal of an even more drastic character than that historical and sometimes much maligned assembly.
The noble Earl opposite stated that in his opinion the life and liberty of no civilian British subject would be in any greater peril of unjust dealing if this measure were passed; and there I agree. I do not believe that any military tribunal, safeguarded, as the noble Earl pointed out, by the fact that the connection between the War Department and Parliament is an exceedingly close one, could be, even if it desired to be, unjust in this matter of trying a civilian—that is to say, that no hurried decision could be taken by which a British subject would be tried, perhaps not by a public trial, and taken out and hanged or shot without having an opportunity of appeal. The noble and learned Earl must also remember that the prerogative of mercy is in no way interfered with by any legislation of this kind; and that means, of course, that although there may not be a formal appeal, yet there is an appeal to a civil authority in spite of any sentence which may he passed by a military Court.
I say frankly that I quite respect the force of the objections raised by the noble and learned Lords who have put their case so forcibly, but I cannot believe that any practical hardship or injustice is likely to 219 follow from the passing into law of this provision, whereas there may be some cases—in fact I am sure, apart from this single question of the death penalty, there will be a good number of cases—in which minor penalties would be deservedly inflicted upon culprits under this Bill which without its passage could not be so inflicted. I should view the loss of the Bill with deep regret. There are certain measures which I trust will be promptly taken in some parts of the United Kingdom which may be only rendered possible by the passing of this Bill, and its failure would be in my view a serious public misfortune. I hope, therefore, that my noble and learned friend, if he is willing to agree that practical hardship or practical injustice is net likely to follow from the passing of the measure in its present form, will be satisfied with having raised his objection as he has and agree to withdraw his Amendment.

§ THE EARL OF HALSBURY
My Lords, I cannot help thinking that the noble Marquess the Leader of the House does not sufficiently appreciate the difliculties that there are in the way. I have noticed from time to time an evasion of the responsibility of who is to put the law into force. Does he propose that the military, with all that they have to do at present, which is very considerable, are to take upon themselves the administration of justice throughout the country with reference to all such questions as may arise upon spying? I believe with good reason, the whole of the English people is under the impression that there is an extensive system of spying going on at this moment. Well, who is to be responsible for bringing those matters before some Court or another? Is it supposed that the civil Courts are to have no jurisdiction over high treason?

THE MARQUESS OF CREWE
Oh, no.

§ THE EARL OF HALSBURY
Well, who is the person to whom one may look? My noble friend who from time to time has raised this question says that there are various instances of which people know—I know some myself—and yet nothing is done. It may be that after due investigation there is no case—I do not seek to condemn anybody—but although there is undoubtedly a very strong impression that there is a general spying system going on, one has seen no effort to bring it to light; and if this Bill is passed I undertake 220 to say that the civil magistrates and the police generally will consider that the matter now belongs to the soldiers. I doubt very much whether the soldiers will accept it. At all events whether they will accept it or not you have a divided authority upon this matter, and nobody to determine who is to take possession of such and such a case and investigate it to the bottom. It appears to me to be extremely desirable that you should pick out what the particular things are that are to be remitted to the military tribunal and what to the civil tribunal in the ordinary course. Speaking for myself, rather than put the Government to any difficulty in the matter I will withdraw my opposition and yield to the earnest persuasions of the noble Marquess opposite. But I am by no means satisfied that it is either the wise or the practical thing to do. Undoubtedly it is about the most unconstitutional thing that has ever happened in this country.

§ EARL LOREBURN
My Lords, I have not the smallest desire to imperil this Bill, because I think some of the provisions of it—in fact, all its provisions except the one about the tribunal—are necessary, and I wish to see them passed into law. But will the noble Marquess, as we are about to adjourn, be kind enough to say this, that between now and the next sitting the death sentence shall not be inflicted upon a civilian who is a British born subject by a Court-Martial except where there is not a regular Court of Justice available? If he will say that I shall be quite contented.

THE MARQUESS OF CREWE
I think my noble and learned friend will see that the question which he asks is not an easy one for me, having no special responsibility and certainly no Departmental responsibility in that matter, to answer offhand. I should have thought it exceedingly likely, where a British subject is concerned and the offence involved is plainly one of high treason, that the trial would take place in the ordinary way. Where there is a prima facie case for putting a British subject on his trial for high treason I can see no reason why the normal practice should be departed from, and it is one which I imagine people of all views would prefer to see taken. But I can conceive cases of purely military offences, which in one sense though not in the ordinary sense might be regarded as high treason, which would be more appropriately tried by a military tribunal.

§ EARL LOREBURN
The point is that this Bill gives a Court-Martial jurisdiction over life and death, which no Court-Martial has when an ordinary Court of Law sits. I do not want to press the point unduly, but surely it is a very serious matter and one which might be left over between now and the next sitting.

THE MARQUESS OF CREWE
May I endeavour to illustrate my point of view in reply to my noble and learned friend. At the time of the dynamite explosions in this country—I refer to the Irish-American dynamitards—there were one or two cases where dynamite outrages were made upon public buildings and in some cases lives were lost, and people were put on their trial for murder. There was one attempt made on the Tower of London. The Tower of London is a fortress, and the one crime, so far as I know, for which the penalty of death can be inflicted in addition to murder is an attempt upon a fortress or one of His Majesty's ships, even although no life be lost. It was discussed at the time whether this particular criminal might not be put upon his trial for high treason for an attempt to blow up one of His Majesty's fortresses. I am bound to say, if some such offence were committed now, although the offence is high treason its character would more nearly bring it within the category of a military crime which might appropriately be tried by a Court-Martial under what the noble Earl opposite called the quasi-military regime which is now existing in this country. Subject to reservations of that kind I can certainly, I think, assure my noble and learned friend that no civilian, even if condemned to death under this Act, would be executed without the most careful consideration and examination of the case by the civil authorities of the country, and that it therefore would be a false induction to draw that the whole chance of life or death for a British subject, a civilian, is placed in the hands of a military tribunal. I do not know whether that fact would in itself give any consolation to my noble and learned friend, but in practice I think it does tend to modify what he conceives to be the danger of trusting this matter to a purely military tribunal.

§ LORD PARMOOR
Might I ask the noble and learned Viscount whether it is his opinion that if this Amendment were pressed it would be impossible for this Bill to become an Act.

§ THE LORD CHANCELLOR
Yes; I am afraid it could not.

§ LORD PARMOOR
I feel as strongly as does the noble and learned. Earl upon this topic, but I would not care, neither, I think, would Lord Loreburn, to take any attitude which might imperil the Bill.

§ VISCOUNT BRYCE
I think what my noble and learned friend feels, and what many of us feel, is the danger of setting a precedent. What we want is to safeguard the liberties of our fellow-citizens in the future from the possibility of its ever being said hereafter that Parliament entrusted Courts-Martial with the jurisdiction of life and death over British subjects at a time when there was neither invasion nor civil war. Of course, were there invasion or civil war the whole position would be entirely different, and a Proclamation by His Majesty would put Courts-Martial in a position which they do not at the present moment possess. We do not want to delay in any way the passage of the Bill, but we do desire to prevent the acceptance of what we regard as a dangerous precedent.

THE EARL OF CRAWFORD
I hope the Lord Chancellor will not give way.

§ THE LORD CHANCELLOR
The undertaking asked for may not be a serious undertaking, after all. As I understand it, what my noble and learned friend asks for is an undertaking that when the House sits again the matter should be reopened, and that before that time no one should be tried for his life—.

THE EARL OF CRAWFORD
No; executed.

§ EARL LOREBURN
Deprived of his life—that you will not have any one deprived of his life under this Bill until Parliament has had another opportunity at its next sitting of considering what it will do.

THE MARQUESS OF CREWE
We can agree to that.

§ THE LORD CHANCELLOR
I think so. I speak not wholly without knowledge of these things, because, under a special arrangement, at present Courts-Martial come before me.

§ EARL LOREBURN
I mean deprived of his life by sentence of Court-Martial.

§ THE LORD CHANCELLOR
I think there is no difficulty about giving that undertaking.

§ EARL LOREBURN
I mean a civilian, a British subject not under military law—that he should not be deprived of his life by sentence of Court-Martial for anything under this Bill.

§ THE LORD CHANCELLOR
What my noble and learned friend desires is an undertaking that until the House reassembles and the matter can be considered again such a person shall not be executed in virtue of a Court-Martial sentence under the provisions of this Bill?

§ EARL LOREBURN
Yes.

§ THE LORD CHANCELLOR
I am prepared to give that undertaking.

THE EARL OF CRAWFORD
I should like to know when Parliament is going to meet again. In the House of Commons it is generally understood that the date will be the 3rd of February.

§ THE LORD CHANCELLOR
Assume that it is so, all these people could in the meantime be tried for high treason. Anyhow it is only a temporary matter, and very likely no such case will arise. Up to now only one case has occurred. I think I can safely give the undertaking asked for by my noble and learned friend.

THE EARL OF CRAWFORD
I shall not stand out against the arrangement made, but I do enter a protest. You are putting upon soldiers certain responsibilities, and now you are, provisionally at any rate, denying to those soldiers the right of enforcing their powers.

§ EARL LOREBURN
No.

THE EARL OF CRAWFORD
Yes. That is what the noble and learned Earl has been asking all the time. It is to be held up until Parliament meets again. What has Parliament to do with it? Is Parliament to revise a death sentence? The point is that no one shall be deprived 224 of his life, not tried for his life as the noble and learned Viscount on the Woolsack thought. Is Parliament to replace the exercise of clemency by the Crown? What on earth has Parliament to do with the matter? Why is no man who is convicted of a gross offence to suffer for it until the Houses of Parliament meet again?

§ EARL LOREBURN
I am sure the noble Earl misunderstands what I mean. I should like the thing settled now by the insertion of my Amendment, but it is said that it is too late and that the House of Commons cannot deal with it. All I want is that a British subject who is a civilian shall not be put to death by sentence of a Court-Martial until Parliament has had an opportunity of considering this point.

THE EARL OF CRAWFORD
Of considering the death sentence, does the noble and learned Earl mean? or the bringing in of an Amendment to this Bill?

§ THE LORD CHANCELLOR
The bringing in of an Amendment to this Bill, I understand. The noble and learned Earl asks that the death sentence should not be inflicted by Court-Martial until the next sitting—until there has been an opportunity to consider the matter again. If it is desired to inflict the death sentence, there will be a trial for high treason.

§ EARL LOREBURN
Hear, hear.

§ THE LORD CHANCELLOR
That is the undertaking; and, rather than lose the Bill, I am prepared to satisfy my noble and learned friend by giving it.

§ EARL LOREBURN
I withdraw the Amendment.