Secretary of State for War would consent to the insertion of the word "wilfully." GENERAL SHUTE observed, that the clause only referred to commanding officers. He thought it would be far better if the few words to which objection had been taken were omitted. SIR WILLIAM HARCOURT said, that a commanding officer was, by the present law, bound to deliver over to the civil power any officer or soldier under his command, guilty of any act contrary to law, on proper application being made to him. So far as he could see, this clause practically reproduced Clause 76 of the old Mutiny Act, except, it might be, by the omission of the words "" "under his command.' He thought that those words were properly omitted, in order to insure in every case the due execution of the law against any soldier. It was undesirable that an officer should not be bound in all cases to aid the civil power in the apprehension of military offenders. SIR ALEXANDER GORDON observed, that by the clause, as it stood, an officer was to be punished if, on application being made to him, he neglected or refused to assist in the apprehension of any officer or soldier charged with any offence in any Civil Court. Those words went too far, and what he asked was that it should not be made penal for an officer not to have given into custody a soldier charged with any offence, when that officer might know nothing about it, except that the soldier was under his command. MR. E. JENKINS remarked, that the clause was in accordance with the existing law. The Mutiny Act, it was true, confined the offence to a commanding officer; but the 96th Article of War provided for any officer or soldier who, on application being made to him, should neglect or refuse to deliver over to the civil magistrate any officer or soldier accused of an offence punishable by a Civil Court. He did not think it could be said that the clause altered the existing law. Amendment negatived. "Devil's Clause." On general principles, he should be inclined to think the clause objectionable, as the great object of all criminal legislation was that crime should be specifically defined. He should be very glad if such a provision could be done away with; but he did not think it was possible. It had been found necessary, for the maintenance of discipline, to have some such clause as that, which corresponded with regard to the soldier very much to the clause with reference to an officer making punishable conduct unbecoming an officer and a gentleman. As in the case of an officer it was necessary to provide generally for conduct unbecoming an officer and a gentleman, so, in the case of a soldier, for any act, conduct, disorder, or neglect to the prejudice of good order and military discipline not otherwise specified in the Act. The evil, no doubt, was that this clause might be used by officers in courts martial to try soldiers for offences specified in other clauses. He desired that it should be made quite clear that that was not to be done. Evidence was given before the Select Committee to show that there was a disposition to use the clause for cases in which it was not intended to apply. To meet that objection he should, therefore, propose to put in words at the end of the clause declaring that it was not to be employed for purposes of punishment in matters for which a specific punishment was provided by the Act. He should now move, as an Amendment, in page 16, lines 25 and 26, to leave out the words "though not in this Act otherwise specified," and would move later on to insert the provision he had mentioned. COLONEL STANLEY said, that, on consideration, he agreed with the Amendment proposed by his hon. and learned Friend the Member for Oxford (Sir William Harcourt). There was a good deal to be said on both sides; but as it was in accordance with the general principle of the Act to specify crimes and punishments, it was certainly undesirable to leave it in doubt that this Clause agreed to; and ordered to stand clause was only intended to apply to part of the Bill. Clause 40 (Conduct to prejudice of military discipline). SIR WILLIAM HARCOURT said, this was known in the Army as the VOL. CCXLVI. [THIRD SERIES.] offences upon which the Act was silent. Amendment agreed to; words struck out accordingly. SIR ALEXANDER GORDON moved, as an Amendment, in page 16, line 27, U to leave out the words "on conviction | the Committee that the clause, as it by court martial," in order to insert stood, was more severe than the Article "be tried by court martial, and on con- of War. Whereas the Article of War viction shall." The 105th Article of gave some sort of direction to a court War, referred to in the margin of the martial that the crime or offence should Bill as being that upon which the clause be taken cognizance of according to its was founded, declared that offences to degree, yet, in this clause, those words the prejudice of good order and mili- were left out. No such direction was tary discipline should be taken cog- anywhere given to a court martial by nizance of by a court martial. That this Bill, and anyone who knew anyprovision had been in use for many thing about military men would see years, and had worked well. Many that when a man was tried before a hon. Members were most strongly op- court of officers for having shaken his posed to the offences of officers and fist at his commanding officer, or some soldiers being tried by any other means little offence of that sort, the absence of than by court martial, and the object of any direction to the court martial to the Amendment was to insure that treat the offence according to its nature course being taken. He sought to make and degree would considerably prejuit imperative upon the Secretary of dice the offender. In his opinion, that State for War, when he took cognizance was a matter well worthy of attention. of any of these offences, to deal with As courts martial were become more them only by bringing the officers or ordinary, it was more necessary than soldiers charged therewith before ever that clear and explicit directions court martial. should be given by the Bill to persons not instructed in law as to what they were to do. There was a great deal of force in the view of his hon. and gallant Friend that no man ought to be punished for crimes which came properly under this clause, unless he had been previously brought to trial before a court martial. That was a point upon which they had been endeavouring to insist throughout the Committee, and he should go into the Lobby with his hon. and gallant Friend if they went to a Division upon it. a COLONEL STANLEY said, that, whatever might be the effect of the 105th Article of War, the hon. and gallant Member must see that the effect of the Amendment he proposed would be to render the clause which they were passing more stringent. Whatever act might be construed as prejudicial to good order and military discipline, however trivial, must, if the words were inserted, be tried by court martial, and he did not think that that should be done. The alteration of the clause would really tend to increase the danger which the hon. and gallant Gentleman feared. Although the Article of War might be as he had stated, yet it was well known that it was not put in force, and that great discretion was exercised by the authorities. MR. E. JENKINS remarked, that the right hon. and gallant Gentleman admitted that the Article of War specifically stated that these offences should be taken cognizance of by a court martial; but he had gone on to observe that they were not always taken cognizance of. But the contention of his hon. and gallant Friend the Member for East Aberdeenshire (Sir Alexander Gordon) was that persons should not be treated as being guilty of these offences without being previously tried by a court martial. It was necessary to introduce the words he proposed to insure that being carried out. He wished to point out to Sir Alexander Gordon SIR WILLIAM HARCOURT did not think it quite certain that the Amendment proposed would make the clause less severe. On the contrary, he thought it would make it more severe, for the clause covered every "act, conduct, disorder, or neglect," and no one could wish a man to be tried by court martial for a very trivial offence. For slight offences a commanding officer could award punishment to soldiers, and no one could insist that every one of these should be tried by court martial. If that were done, the clause would be made much more severe. The authorities avoided doing so now by putting a liberal interpretation upon the Article of War. The hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) wished to insert his Amendment in order that everyone charged with these offences might be tried by court martial. What he (Sir William Harcourt) should contend, on the other hand, was that if lighter penalties were provided, then the authority of the Statute was not needed; but if a court martial were required, then the words in the clause, "upon conviction by court martial," were sufficient to meet the case. MAJOR NOLAN could not support the Amendment. In his opinion, it would make the Act, already stringent enough, still more stringent. A commanding officer would be placed in a position in which he would have to say to an officer or soldier-“You have committed an act by which, under this clause, you must be dealt with by court martial." He thought it would be better if the words were not inserted. LORD ELCHO considered it necessary that the Army should be kept in thoroughly good order and discipline. But when he heard the hon. Member for Dundee (Mr. E. Jenkins) refer to a soldier's shaking his first in the face of his commanding officer as a very small offence, he thought it right to say that, in his opinion, expressions such as that should not be used in the course of that debate. What passed in that House was very fully reported, and when soldiers read in the newspapers that a distinguished Member of the House of Commons had stated that it was a trivial offence for a soldier to shake his fist in his commanding officer's face, it would have a very prejudicial effect. MR. E. JENKINS observed, that the noble Lord opposite (Lord Elcho), being a Scotchman, seemed to have no sense of humour. But, perhaps, when he (Mr. E. Jenkins) made use of the words complained of, he did so unadvisedly. He would venture to point out that the clause, as it now stood, was very much more severe than the Article of War, because the Article of War took cognizance of the offence according to its degree, whereas the clause contained no such modification. No one would wish that every person who had committed any of these offences should be tried by court martial, only that they should be liable to be so. He thought that both officers and soldiers would prefer the 105th Article of War to the clause of the Bill. MR. GOLDNEY did not think that the hon. Member for Dundee had read the Article of War correctly. In a compromise between the two, it seemed to him (Mr. Goldney) that the clause was the more favourable to the persons coming under it. SIR ALEXANDER GORDON thought it obvious to every military man that his Amendment was not capable of the construction put upon it by the hon. and learned Member for Oxford (Sir William Harcourt). The Article of War had been in use about 100 years, and, never having been subjected to the hypercriticism of the hon. and learned Gentleman, it had never been construed in the way it was now put by him. It was never intended that everyone should be tried by court martial for every offence, and he should contend that that was not the proper construction of his Amendment. But the object of his Amendment was to prevent the system that had only been recently adopted and had come into practice, by which the Secretary of State for War overrode all law by pronouncing judgment himself upon officers and soldiers charged with offences. Such a system as that would never formerly have been thought of. MR. RYLANDS thought, after the very serious statement which had been made as to the conduct of the War Office in the matter of courts martial, some explanation should be given. The hon. and gallant Gentleman the Member for East Aberdeenshire (Sir Alexander Gordon) had, in the most distinct manner, charged the Secretary of State for War with a very grave misdemeanour. He had stated that the right hon. and gallant Gentleman had been in the habit of making use unnecessarily of the power he possessed to deal with military offenders, and of not bringing offences under the cognizance of courts martial when they ought to have been. When hon. and gallant Gentlemen in the Army thought it necessary that some provision should be made against this sort of procedure, he was of opinion that the Committee ought to take some notice of the matter. He (Mr. Rylands) was very much influenced by the authority of the hon. and learned Member for Oxford (Sir William Harcourt) in other matters; but upon this clause he was not disposed to regard him as an exclusive authority. He thought that it was undesirable that for some trivial offence there should necessarily be a court martial; but he quite agreed that if there was any chance of the clause being made use of to perpetrate any injustice upon the interpreted the 105th Article of War in SIR HENRY HAVELOCK said, he was of opinion that the effect of the Amendment of the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) would be that every person subject to military law committing any offence contrary to good order and military discipline must of necessity be tried by a court martial. He did not think that that was a result which was desirable, and that there should be no option but to try every man by court martial. Although he agreed with the desirability of offences being tried by court martial, yet, for the reasons he had alleged, he could not support the Amendment. MR. HOPWOOD was of the same opinion as the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon) as to the propriety of making courts martial obligatory on the War Office in lieu of secret procedure. But, still, he thought his Amendment open to the objection urged against it-that every offence, however small, would have to be tried by court martial. He would, therefore, venture to suggest that he should withdraw his Amendment, and that after the words "court martial" in the clause, should be inserted the words "and not otherwise." | That would effect his object that no man should be sentenced to any of the penalties provided by the clause, except after conviction by courts martial, and would also meet the objection that had been raised to his Amendment. THE CHAIRMAN inquired what course the hon. and gallant Member for East Aberdeenshire intended to pursue? SIR ALEXANDER GORDON stated that he would withdraw his Amendment. Amendment, by leave, withdrawn. MR. HOPWOOD moved to insert, in page 16, line 27, after the words "court martial," the words "and not otherwise." SIR HENRY JAMES observed, that those words would do nothing at all. It was only saying that that should be done which should be done. If MR. HOPWOOD did not think there was anything extraordinary in inserting the words, which were very usual in the Acts of the Legislature. It was simply said that something should be done by court martial, and by that alone. those words were not put in, the clause would be open to the construction that an officer might be cashiered for such offences as these, although not tried by court martial. He ventured to say that if the words "and not otherwise" were inserted, it would have the effect of the Legislature saying in no other way than by court martial ought an officer to be cashiered. SIR WILLIAM HARCOURT observed, that that construction would destroy the power of the Crown to cashier officers. If an offence could not be cashiered except by court martial, as, according to the hon. and learned Member for Stockport, would be the case if his Amendment were adopted, it was a direct interference with the power of the Crown to cashier at its absolute discretion. That power would be indirectly taken away by his Amendment. SIR ALEXANDER GORDON was quite willing to adopt the course proposed by the hon. and learned Gentle- MAJOR NOLAN contended that the man the Member for Stockport (Mr. words "on conviction by court martial” Hopwood), and begged to withdraw his governed the word "soldier" lower down Amendment. Before he did so, how-in the clause, and, under that provision, ever, he would ask the hon. and gallant Gentleman the Member for Sunderland (Sir Henry Havelock) whether, in the whole course of his service, he had ever Mr. Rylands a commanding officer might give 21 days' imprisonment. It would be very serious, indeed, if the words proposed were put in the clause, because it would prevent with a cised a discretion with regard to sending e small offences before a court martial, if it were im to a adopted, when once they had taken cognizance of a case, there would be no ed that option but to have it tried by court ta com- martial, and thus subject the offenders an guilty to much more severe punishment. Thereof good fore, he wished (the clause to stand as even re- it was, and he trusted that the Comd not be mittee would proceed and give its deciDurt mar- sion upon what, after all, was a very penalties small matter. SIR HENRY HAVELOCK objected h to affect to the Amendment, both on the ground to dismiss that it might be an interference with on which the Prerogative of the Crown, and that never any it would prevent offences, however small, any such being dealt with otherwise than by he clause, court martial. It was not desirable to by court interfere with the Prerogative of the 1 by court Crown in an indirect manner; and sendwith in no ing cases to court martial instead of on as that dealing with them summarily would, Prerogative so far from being an alteration in the ne for any direction of leniency, be exactly the refar as this verse. 30 far as it then those d upon by a that a man it any court t think that fere with the co dismiss an out assigning 1, he should as the Comd to hear him ion proposed, report Prosit again.". was not aware had met with of the comse points were y of the Comorted Progress se, they would atide Holidays here had been the contrary, most smoothly. mendment was ties now exer MR. E. JENKINS stated that he had no desire to stop the progress of the debate; but if the right hon: and gallant Gentleman the Secretary of State for War would put some little restriction upon the tempestuous element behind him, he thought they would get on better. He had taken considerable pains to acquaint himself with the details of this measure, and thought that the Committee should pay some regard to the objections brought forward. He would advise his hon. and learned Friend (Mr. Hopwood) to withdraw his Amendment after the opinions that had been expressed as to its effect upon the Prerogative of the Crown. Undoubtedly it was the Prerogative of the Crown to dismiss without any reason given; and as regarded that Prerogative, it was not proposed for one moment to interfere with it. They proposed only to point out that if an officer were charged with the offences cognizable by military tribunals established in the Act, that then, in relation to those offences, he should be allowed the privilege of a trial by court martial before the Crown exercised its Prerogative. That might be an interference with the Prerogative of the Crown to some extent, as it asked the Crown, before it dismissed officers for particular offences, to restrain its Prerogative until they had been tried by courts martial under the Act. No |