HL Deb 21 July 1879 vol 248 cc830-42

Order of the Day for the Second Reading, read.


, in moving that the Bill be now read a second time, said, that for a long time there had been a pretty general opinion that the old Mutiny Act, which was an accretion of various enactments since 1689, was a somewhat inefficient instrument for the government of the Army; and in recent years those who had charge of passing it through the other House of Parliament were well aware that many parts of it were difficult to defend, and ultimately it was agreed that the subject should be referred to a Committee, Our Army had been governed by various Acts of Parliament, by Articles of War, by Royal Warrants, and by General Orders and Circulars issued from the Horse Guards. Under those various documents it was sometimes difficult to ascertain by what rule the Army should be governed, and more especially questions arose between the Articles of War and the Mutiny Act. A Commission in 1869 recommended that the Mutiny Act and the Articles of War should be carefully re-drawn; and when his noble Friend opposite (Viscount Cardwell) became Secretary of State—he believed as early as 1871 or 1872—he referred the question to the Judge Advocate General, Mr. Davison, a man very eminent in his Profession, highly qualified for the work, and whose untimely death was a great loss to the Public Service. Subsequently, the subject was carefully and repeatedly considered by the Parliamentary draftsmen and the authorities, including Mr. Ayrton, who, while Judge Advocate General, gave great attention to the subject with results which he was happy to have the occasion to acknowledge. When, therefore, he (Viscount Cranbrook) entered into Office he inherited a great amount of information which had been accumulated by his Predecessor. He was too much occupied during his first year or two of Office to pay much attention to the subject; but last year a Committee was appointed in the House of Commons, over which Sir William Harcourt presided. No one was better qualified than Sir William Harcourt to enter upon the question; and it was only right that he should, on the part of the Government, thank him for the pains he took in the Committee and for the support which he gave in the other House to the main portions of the Bill. He should come at once to the Bill, and in dealing with it he had to apologize for the shortness of the time their Lordships had for the consideration of it, and for the request which he had to make—a matter of still greater moment—that no Amendment should be made in the Bill—because, otherwise, the Bill could not be passed before the time at which it was necessary to obtain the Royal Assent. He felt sure that, however much their Lordships might wish to discuss the Bill, or to change some particular details in it, they would patriotically abstain on this occasion, in order that the Army might be placed immediately under the government of an Act which was manifestly a great improvement on that law which had existed heretofore. The Bill was divided into five Parts. The first Part dealt with; "Discipline"—which included "Crimes and Punishment," "Arrest and Trial," and "Execution of Sentence." The Bill defined the persons who were subject to it—officers and soldiers, and—which was an important change, assimilating the operation of the law to the Indian Act—camp-followers and sutlers. In future, as in India, camp-followers and sutlers would be brought under military law. The next point was "Military Offences." Military offences were grouped in the order of their importance. There was a distinction made between offences committed on active service and offences committed in time of peace—because an offence which might be a simple one in time of peace might in time of war lead to the destruction of an Army or to the serious injury of a strategic movement. With regard to the punishments that might be inflicted under the Act, though there was a maximum punishment laid down for offences, it by no means followed as a necessary result that the maximum punishment would be inflicted. Power was now given to every kind of court martial to try every kind of offence, in order to prevent the system hitherto adopted in the Army of minimizing offences so that they might be tried by the lower courts martial. At the same time, care would be taken that none of the most serious offences should be tried by the lower courts martial. It was not necessary to take special notice of these punishments save one. He referred, of course, to corporal punishment, which had given rise to a good deal of discussion in the other House of Parliament. There had been an impression in the country—quite an erroneous one—that corporal punishment existed in the Army for all sorts of offences in time of peace. That was not the case. Corporal punishment existed in time of peace for offences on board ship—not on board Her Majesty's ships, because there soldiers came under naval discipline—and ceased to be under military discipline; for troops on board ships not belonging to Her Majesty there was a power given under the law, as it now existed, to inflict corporal punishment. By the present Bill this power ceased to exist. Then, with respect to the amount of punishment to be inflicted in the Army, when the Bill, was first introduced it was limited to 50 lashes; but, by an Amendment which was made in the other House, 50 lashes was reduced to 25. For his own part, he did not think that the question of degree was the question of importance in this matter. The question of the necessity of punishment could be decided only by those who had the charge of exercising it; and until the country came to a more satisfactory state of things in the Army he believed, in the interest of the soldier himself, it was better that this sharp and decisive punishment should be inflicted at the moment and on the spot than that an attempt should be made to drag a number of prisoners, soldiers, or camp-followers in custody with the Army. The question was now brought to this point. The power to give corporal punishment was no longer vested in the provost marshal of his own will; but the provost marshal had power to take immediately into custody an offender and summon a regularly constituted court martial, composed of officers on the spot, who would order the infliction of the punishment which they might adjudge. That seemed to him a protection to the soldier and the camp-follower, and he hoped that it would not too much weaken the power of the provost marshal. The punishment of flogging was in future to be inflicted only for offences which rendered the man liable to sentence of death, and those offences were limited to the breach of the laws of the Army in the field on active service. Having begun with no corporal punishment in time of peace except on board ship, they had done away with it in that case, because on board ship they had the power of custody; but in the field in time of active service, the Bill still left the power in the hands of the courts martial that where the maximum punishment was death they would be able to inflict the lesser punishment of the lash. For his own part, he quite admitted that corporal punishment had an unpleasant and disagreeable sound when applied to adults; but when it came to a question of the bullet or the lash, how much better was it that, under strict regulation, and under the care which would now be exercised, the lash should be used instead of putting a man to death for an offence which, perhaps, it was felt did not deserve that penalty? They had always a certain number of men of bad character in the Army, and the camp-followers were certainly not of the highest type, and it was essential that they should have the power of keeping such persons in order. In time of war, in the case of passing through a country where it was most necessary to respect the feelings of the population, the stealing of an egg from a hen's nest might be a most serious offence; and camp-followers or others who would take an egg would not stop there—they would more likely take anything they could lay their hands on if they had the opportunity. It was thus essential to the discipline of Armies that there should exist a power to inflict punishment upon offenders with the utmost promptitude. He had heard it suggested that persons offending should be handcuffed and taken on with the Army; but he would venture to suggest that no Army which carried with it an indefinite number of handcuffed soldiers and camp-followers could possibly perform those strategic movements which were from time to time necessary to success. Having looked carefully through the Bill, he was unable to admit that, as far as the punitive portions of it were concerned, there was much difference between it and the Mutiny Act, which it was intended to supersede; but such differences as there were between the two sets of provisions would not tend to the disadvantage of the soldier. Several of the provisions would be strongly in favour of the soldier—as, for instance, as regarded arrest, it was provided that the trial of a man must take place within eight days after his arrest, unless sufficient reasons were given for delaying it—the power of commanding officers to inflict imprisonment for absence without leave was extended to 21 days, but power of appeal was given to the soldier. Again, formerly, when a man was acquitted by court martial, the decision was not made known for some time; but, under this Bill, it was necessary at once to announce the acquittal and order the discharge from custody of a soldier who had been charged with offences against military law and declared not to have been guilty of the offences imputed to him. The only other remark which he felt called upon to make, as far as this branch of the Bill was concerned, was that ample power of appeal was given, alike to officers and soldiers who thought they had been wrongfully accused of offence. The part of the Bill which related to "Enlistment" would make some slight alterations, principally in reference to the transference of men from the Army to the Reserve. The 3rd Part, which related to "Billeting and Impressment of Carriages," required no special notice. The 4th Part consisted of "General Provisions," in which he might refer to the clauses which related to Military Prisons. In dealing with military prisons, care would be taken that soldiers should not be associated with bad characters. That was really the whole Bill; and their Lordships would be surprised, as he had himself been, when he went through the Bill in connection with the old Mutiny Act, to find how slight were the changes effected, and yet, at the same time, upon how different and how firm a basis military discipline and military law generally were established. It would be a great advantage to have this measure, instead of being obliged to go every year through clause by clause of the Mutiny Act. Everything concerning the discipline of the Army was now brought into definite shape, and so clearly set forth, that every man must understand his duties and obligations. In passing this Bill hastily, which he asked their Lordships to do, he thought he might promise that their Lordships would find that, in making great haste, they had also made good speed.


My Lords, I may be permitted to say a few words in reference to this Bill, speaking entirely from a professional point of view, and without reference to any other observations which may be made from either side of the House. I wish to say, in the first place, that we—the military authorities—are in entire accordance with the views of Her Majesty's Government on the subject-matter of this Bill, and the mode in which it is dealt with. It is to be deplored that it should have been stated, as I have sometimes seen, that a difference of opinion exists between Her Majesty's Government and the military authorities with regard to certain points in this Bill. I can only say that I earnestly hope that the time will never arrive at which the deliberately formed opinions of Her Majesty's Government on military questions, no matter to which Party in politics it may belong, will receive any other than full and due support from the military authorities in this country. There may be difference of opinion at first when important points are raised; but when they have been decided, the decisions are accepted by the military authorities with that loyalty and determination which they are bound to show, whatever Party may be in power. As regards the question of discipline, with which I am principally concerned, I agree with the noble Viscount who has moved the second reading that there is very little to be found in the present Bill different from the old Mutiny Act and the Articles of War, which the measure is intended to supersede. The principal difference is that the law is put down in such a shape that it will be much more simple and much more easily understood. All changes of this kind must take a little time to be appreciated by those who have to deal with them. This is a large and comprehensive measure; but I firmly believe that in the long run it will be a much more simple piece of legislation than the old Mutiny Act. As regards the maintenance of discipline, the Bill, I believe, contains provisions under which we shall be able to maintain discipline as thoroughly and as efficiently as it ought to be, and as it has been in the past. With regard to the question of corporal punishment, about which there has been so much discussion, I am fully persuaded that every officer in the Army would desire, if possible, to get rid of all severe and disgraceful punishments; but we are called upon to carry out the discipline of the Army, and the first consideration is, how is that discipline to be maintained? My conviction is—and I believe that it is the conviction of every officer in the Army—thatunless corporal punishment be retained in the Service it will be impossible to maintain discipline—unless the officers have power to deal with, cases as they arise, and unless an Army is kept in a state of discipline, it is a rabble and a mob—it is useless—it is worse than useless—it is dangerous. You must maintain discipline at all costs, and I do not believe that any outrage or injustice will arise under the provisions of this Act. It is said that flogging is a disgraceful punishment. My Lords, all punishments are degrading—it is in the commission of the offence, and not in the nature of the punishment, that degradation consists. What you want to find in a punishment is that it should deter from crime. If the effect of this punishment is to deter men from committing crime, that is the best defence that can be offered for it. The alternative, as regards certain offences, lies between flogging and shooting, and surely flogging is much less severe than the punishment of death. Very serious offences may be committed while the Army is in the field. For instance, an outbreak of mutiny might occur in face of the enemy, or some serious crime of that sort might be committed which must be dealt with instantly and effectively. We are told that foreign Armies have a variety of other punishments. In some, it is said, men are tied up by their thumbs, while in others men are bound hand-and-foot to the wheel of a gun-carriage. I do not know whether such punishments are inflicted or not, but I have seen it stated that they are:—Would it be judicious or wise, however, for us to leave it to the discretion of an officer to resort to punishments of that kind? I am informed that these punishments are inflicted incidentally, as it were, by the officers in command of troops. In my opinion, it would not be at all justifiable for us to leave to an individual officer the responsibility of any punishment to which he might resort in difficult circumstances, because we have not the courage to put what we think right into law. It would be unjust to officers to place them in this false position, and Parliament would be acting with a great want of moral courage if it did not state that, in certain circumstances, corporal punishment may be inflicted. I sincerely hope the necessity for such punishment may never—or, certainly, very rarely—arise; but the effect of having the punishment on the Statute Book is the very thing which will deter men from committing crimes for which corporal punishment can be awarded. Although most anxious to have no punishments which are not justly meted out to men, I am prepared to say that, under existing circumstances, it is necessary and essential to maintain this punishment. With regard to the reduction in the number of lashes, it will, I believe, be found that 25 lashes will produce as great a deterrent as 50; and, therefore, I think it is perfectly justifiable to accept this modification. My Lords, I consider that the condition of a soldier, under this new law, will be very much better than it was under the old. With regard to the subject of enlistment, the Bill makes an important change. Formerly, if a man took the shilling, he was from that moment considered to be a soldier, although he might have been in a state of drunkenness at the time; but under the proposed new law, the shilling test is done away with; if the man does not choose to appear before the magistrate, he may remain away; and he may, if he likes, claim his discharge within three months. This and other points in the Bill are of considerable importance. I am convinced that when the Army comes to understand this measure they will admit that they are in no respect in a worse condition, or under worse treatment, than they were under the old Mutiny Act and Articles of War, and that the officers will be able to maintain the discipline of the Army, which is, after all, the first object we have at heart, and the necessity for which I am bound to press moat earnestly on the attention of your Lordships.


said, he should give the Bill his most sincere and hearty support. His noble Friend the Secretary of State had introduced it in terms which left him nothing whatever to complain of, and the illustrious Duke had also made a most satisfactory statement. The provisions of the Bill would, he believed, effect a very great change for the better in the law relating to military service. Ten years ago a Royal Commission, over which his noble Friend opposite (Lord Winmarleigh) presided, made its Report to the Queen, and the first and chief of its recommendations was that the Mutiny Act and the Articles of War should be carefully re-drawn. In 1871, he (Viscount Cardwell) had the assistance of Mr. Davison, one of the most able men who ever filled the Office of Judge Advocate General. He had expectations that in a very short time—probably in 1872—Mr. Davison would nave been able to present to the House of Commons the result of his labours; but, unfortunately, that gentleman's career was cut short by an untimely death. Afterwards came the time when he had the assistance of his right hon. Friend Mr. Ayrton—and he might here remark that he was glad to hear his noble Friend opposite speak in such well-merited terms of Mr. Ayrton's services. He might say that there was no Judge Advocate General of modern times who had earned to a greater extent the confidence and approval of the illustrious Duke, and of the military men by whom he was surrounded, than Mr. Ayrton did when he held that Office. At the beginning of 1874 he confidently expected to see Mr. Ayrton lay his Bill on the Table of the House of Commons; but their Lordships knew very well what happened in that year. It had, therefore, fallen to the right hon. and gallant Gentleman the present Secretary of State for War to introduce this Bill, which had been sent up to their Lordships on the responsibility of the Crown with the concurrence of the other House of Parliament. With regard to the vexed question of corporal punishment, he might say that he was very much struck on referring to what passed in 1867, when an important step was taken in mitigation of that kind of punishment in the Army. No less sagacious a person than the late General Peel was recorded to have said that if they reduced corporal punishment in time of peace to the dimensions then spoken of, or something to that effect, they would never be able to recur to it in time of war. What he wished to found upon that remark was this—that they did not know what they would be able to do in the way of reducing that punishment if they proceeded tentatively, and so as always to have the results of experience to fall back upon. They might be able to do, in the course of years, things which they now hardly expected to be able to do at all. They had, during the 12 years which had elapsed since General Peel's prediction, gone on improving the condition of the soldier; and, according to the testimony of the Inspector General of Recruiting, the popularity of the Army was rapidly increasing, and there was a much greater disposition to enlist than formerly existed. If they went on perpetually improving the position of the Army in the manner done by the present Bill, and by other ways, they would still further encourage that disposition. He rejoiced that the first step had been taken in ful- filling the recommendations of his noble Friend's Commission; and they might depend upon it that this measure was a very great step towards the simplification of the law and putting it in a form which would reach the comprehension of the soldier. If they went on for the next 12 years, or for a shorter time than that, in their course of continually ameliorating the condition of the soldier, he did not at all despair of their arriving at the point at which they might go even beyond the limit contemplated by this Bill in doing away with corporal punishment. They might have the opportunity, in the next few years, of considering whether any amendment in this measure would be necessary, and he was sure its practical working would be carefully examined by those who were responsible for the administration of the Army.


said, he had no intention of disturbing the harmony with which the Bill had been received by their Lordships. The former Mutiny Act provided sufficiently for the government of the Army, it protected the rights of officers and of soldiers, and of the public; however, if Parliament insisted upon a Bill more symmetrical in arrangement, and more precise in language, he should make no objection; but he rose to express his hope that the Bill, or some other measure which might hereafter be introduced, might have the effect of inducing a superior class of recruits to enlist. He was afraid that that point had not yet been reached. Although he was aware that no Amendments in the present measure could be carried, there were one or two points in it which it was especially desirable should be amended in a future year. The 72nd clause unduly limited the power of the provost marshal. Anyone who had seen the legion of devils who followed an Army would know that a more summary power of dealing with them was necessary than that provided in the Bill. He also thought that the Secretary of State would require greater powers than he now possessed for utilizing the services of the Reserve.


held it to be a mistake to suppose that men of the respectability which was desired in the British Army were for one moment deterred from enlisting by the fear of being flogged. That punishment was feared only by men of the most unfortunate habits and who were looked upon as belonging to the lowest class of our population. He had heard of the case of a soldier in a very distinguished regiment who had been five or six times flogged, and it made no impression whatever on the man, who was now a Scripture reader at Liverpool. Corporal punishment, under the safeguards interposed by this Bill ought, he thought, to be maintained.


concurred in regretting that circumstances made it impossible for their Lordships to discuss the details of this very important measure. He could not, however, say that he regretted that fact on his own account; because he remembered the rule once laid down by a noble Lord—that one should only speak in that House on subjects on which he not only knew something, but on which he was known to know something. He was afraid, therefore, that any remarks which he might have made on the details of the Bill, which had been handled professionally by the illustrious Duke on the Cross Benches, would have had no weight whatever. But, on the other hand, he protested against this measure being considered as necessarily perfect on some of the subjects which had been in controversy. The illustrious Duke had said the Bill contained everything which he thought essential for the discipline of the Army. But the Government had introduced the Bill, after a great deal of consideration, in a certain form with regard to flogging; and all knew that in "another place," under considerable pressure, they had made three distinct concessions in that matter. Either, therefore, they had not considered the subject in time, or the concessions they had now made were against their judgment. This being so, he begged, to say that, as far as he was concerned, he could not accept the present limitations as being necessarily perfect of their kind.


said, that the Government might quote from Horace— Adsit Regula peccatis quœ pœnas inroget æquas Nee sentica dignum horribili sectere flagello. And the measure was one which could be altered next Session. He hoped that it would pass without alteration immediately.

Motion agreed to; Bill read 2a accordingly; Committee negatived; and Bill to be read 3a To-morrow.

House adjourned at a quarter past Seven o'clock, till To-morrow, half past Ten o'clock.