Court-Martial resolved itself into this:-Does there appear in its proceedings a case so pregnant with injustice and oppression as ought to induce the House to take the first step in the career of censure by agreeing to an address for laying the minutes of the Court-Martial on the Table."

10. The late Lord Hardinge, who took part in the debate, pointed out how extremely prejudicial it was, when Courts-Martial had acted properly, that the House should be converted into a Court of Appeal. "No case (he truly observed) had yet occurred in which a Court-Martial had been dealt with in the manner now proposed." The Address was refused after a division, and in the majority these names are to be found :-Lord Althorp, Sir John Campbell, Lord Duncannon, the Right Honourable E. Ellice, W. E. Gladstone, Sir James Graham, Lord Palmerston, and the late Lord Derby.

11. Captain Robison's case is an important one, because it again came under the notice of the House in August 1835, after a Committee had been conceded upon the conduct of General Darling, the confirming officer. To prevent the interference of the Committee with the finding and sentence of that Court-Martial, Earl Russell moved "that it be an instruction to the Committee that they do not extend their inquiries into the proceedings and finding of the Court-Martial which sat on Captain Robison." He then laid down the rnles (which I have printed elsewhere) that should guide the House.2 If in these cases the House interfered "there is no proceeding before a jury; no decision of any tribunal in the country, which might not on the same principle be referred to a Select Committee," and the majority supporting the motion of Earl Russell did so (judging from the arguments used) mainly upon the ground that it would tend to make the House a Court of Appeal from the decisions of Judicial Tribunals.3

12. In the same year the House of Commons refused the production of the Court-Martial proceedings on Captain Atchison, of the Royal Artillery.4

13. Hitherto, since 1745, the rule had been uniform-viz., to refuse production of Court-Martial proceedings; but in 1863, when the Mhow case arose, the Crown, to appease a strong feeling which had been aroused by exaggerated statements made in and out of Parliament against the justice and legality of that Court-Martial, commanded (without Address) that the proceedings should be laid before both Houses (on the 3rd), and the Commons ordered them to be printed on the 6th July 1863. Colonel Crawley having been put upon his trial and honourably acquitted, the proceedings of this later Court were, as a matter of justice to that officer, laid before Parliament.

14. Lord Hartington explained the course which the Government thought it right to take. "He believed he had stated last Session, in reference to, the proceedings of the Mhow Court-Martial, that it was not usual and would not be desirable that the proceedings before such a tribunal should be laid before the House of Commons for its revision; but that under the peculiar circumstances of that particular case no objection would be made to lay papers connected with it on the Table if they were moved for. As to the Court-Martial which had recently been held at Aldershot (on Colonel Crawley), its proceedings were so mixed up with those before the Mhow Court-Martial, which were already in the hands of members, that there would be no objection to take in that instance also the course which had been pursued last year; and if the Honourabie Member moved for the production of the papers for which he asked, they would be laid on the Table."5

15. It is clear from this and other statements made by the Ministers of the Crown in course of the debates on the Crawley Court-Martial that they had no intention of either waiving the prerogative or of reversing the constitutional rule that such proceedings should not (as of course) be laid before Parliament. In March 1864, Lord Hartington, having explained why, in justice to Colonel Crawley, he had given a full and wide circulation to his acquittal, said the Government "did not expect, and, I think, the House will hardly hold it to be right that when a full and ample investigation has been gone into before the only tribunal to form and pronounce a decision upon the case, it is hardly fair, or honourable, or consistent with our notions of fair play that the evidence should be again gone over in this House, and that the country should be invited te arrive at a different conclusion from that already formed."6

16. When the subject was again brought before the House (15th March 1864) upon a motion for further inquiry, an amendment being moved from the Opposition Bench by General Peel, Lord Hartington supported the amendment and refused further papers." "He quite agreed with the right honourable gentleman (General

119, H.D. (3rd Series), pp. 392, 607.

30, H.D. (3rd Series), p. 146.

173, H.D. (3rd Series), p. 1656.

Vol. I., p. 175; vol. II., p. 329, Military Forces. * Ib., p. 127. 173, H.D. (3rd Series), p. 170. 174, H.D. (3rd Series), p. 52.

Peel) that it was highly undesirable that the House of Commons should habitually make itself a Court of Appeal for the revision of the proceedings of Courts-Martial; it was quite as undesirable that it should constitute itself into a Court of Appeal in any case, whether affecting military or civil affairs. It was, however, useless to argue (referring to the Mhow Court-Martial), when a case had caused very widespread popular excitement, when the public believed, whether rightly or wrongly, that injustice and oppression had been committed, that the Government ought to try and suppress discussion on the subject in the House of Commons."

17. In Captain Jervis's case, it appears from the Journals, that the motion passed as one unopposed (122, Common's Journals, p. 336), but in the debate upon Mr. Brett's motion, "that Her Majesty would be pleased to reconsider that sentence, with a view to re-instate that officer in the Army," the older Members, and notably General Peel, warned the House against interference.1 "If (said he) that House was prepared to make itself a Court of Appeal in such matters it could not confine its deliberations to cases in which officers who had the good or bad fortune to have connections in that House were concerned. There was not a corporal who had the stripes taken off his arm, or a private who had stripes put on his back at the instance of a Court-Martial, whose case might not be brought before that House." "I agree with the right honourable gentlemen (said Lord Hartington2) that this House ought to be extremely careful as to the occasions and the manner in which it interferes with military questions of a personal character. Still there are occasions, even of a personal character, in which it may properly interfere. If there is a suspicion that personal favour has been shown to an officer, or that justice has not been done to his merits, the publicity given to such cases cannot but be beneficial. But we ought to be very careful when we undertake, in questions affecting military discipline, to review the decisions either of legally constituted tribunals, or of officers who have the power to revise such decisions. Their is one point to which 1 wish to refer. It may be said that the motion of the hon. and learned Member for Helston is an invitation to us to revise the decision of a Court-Martial. To a certain extent that is true, as a Court-Martial did sentence Captain Jervis to be dismissed from the Army. But the hon. and learned Member will probably reply that he is not so much inviting the House to revise the decision as to attend to the recommendation to mercy given by the Court. Although, therefore, this motion can hardly be taken as an invitation to revise the sentence of the CourtMartial, it is an invitation to an act which is almost, if not equally, delicate and dangerous—namely, to undertake the revision of judicial decisions come to by persons legally qualified to give them-the Commander-in-Chief in India and the Commander-in-Chief at home, backed up by the authority of the Secretary of State for War," and he concluded by saying that, "unless the House is fully convinced that an act of substantial and gross injustice has been done, it will be setting a bad example and establishing a mischievious precedent if it undertakes to revise the decision not so much of the Simla Court-Martial as of all those authorities whose duty it has been to revise and to act upon them.3

18. I have traced in outline all the cases which have come before Parliament prior to that of Captain Roberts in 1877. No opposition was made to the motion for the Address, and the proceedings were laid before Parliament. It was then scarcely open for the Secretary of State, after consenting to a prior address for production, to contend that the Court-Martial was one to which the attention of the House ought not to be called; for if so, why had the proceedings been produced by the Ministers of the Crown, and printed by order of Parliament ?4

(E.) Whether a Member serving under the Army Discipline Act can attend Parliament "without leave" from his superior officer (p. 94).

1. The question raised involves another, which is this, viz., whether in a conflict of public duty that in the Army should prevail over that in Parliament, or whether, to put the same question in another way, the Crown must forego an officer's military service, that he may give his Parliamentary service to the State.

2. The earliest reference to this question is to be found in the Articles of War, A.D. 1666, which limited all officer's leave to two months in one year, "except " (as the words run) "he be a member of Parliament, and then his absence may be allowed during the sitting of the Parliament and till the next muster, and no longer."

1 189, H.D. (3rd Series), p. 1018.

2 Ib., p. 1031. * 235 H.D. (3), pp. 923-946.

* lb., p. 1035.

3. The second reference is found under date of the 3rd November, 1685,1 when His Majesty, by circular from the Secretary at War, signified his pleasure to each officer (being a Member of Parliament) to give his attendance in the House of Commons as soon as possible.

4. It is certain, therefore, from these references, that the Crown, in the early history of the army, sanctioned the attendance of officers to their Parliamentary duties.

5. But is such sanction necessary, and if so, can it be legally withholden? Lord Coke held "that the Crown could not grant a charter of exemption to any man to be freed from election to Parliament, because such elections ought to be free, and his attendance is for the service of the whole nation ; and Lord Ellenborough, "that every man who is returned is bound by the law of the land to serve.'

6. In practice such leave has, I apprehend, always been applied for, and according to the late Duke of Wellington (writing in 1807) always necessary. Thus when Lieutenant-Colonel O'Dell-who had been put in arrest for quitting his corps to attend to his Parliamentary duties without leave-applied to the Duke (then Sir Arthur Wellesley) for release, he received the following answer :-

"It is usual for the Commander of the forces to give leave of absence to an officer who desires it with a view to attend Parliament, but no officer can absent himself from his corps without leave without making himself liable to the disgrace and punishment which the Mutiny Act and Articles of War have awarded for that crime."3

7. The letter also contains these general remarks upon the subject now under notice:

"If the duties of Parliament and the duties of an officer are incompatible and inconsistent with each other, it is in the power of a gentleman to resign either the one or the other, but no army can exist for a moment under the notion that an officer can quit his corps without leave, even to attend his duty in Parliament.”

8. But, notwithstanding the high authority of the Duke of Wellington, it must not be assumed that the law is clear that an officer attending the House of Commons without leave could be legally punished by a court-martial, for in 1819, when a soldier was tried for absence from duty, caused by attending the House of Commons upon summons, the House treated the case as one of breach of privilege, holding that no leave whatever was needed.4

9. The instances quoted have reference to the fact that Parliament was then in session, and that the officer's attendance was to be given within its walls. No case (that I am aware of) is to be found where his attendance for political purposes elsewhere has been justified without leave, or where the Crown has been held bound to give him leave for any such purpose.

10. If, Parliament being out of Session, an officer's military duty requires him to serve abroad, then it is presumed that he must go there, for as the Duke of Wellington put the case he has the option in the present day of serving either in the Army or in Parliament, but not in both when these duties are inconsistent and incompatible; in other words he is bound to tender his resignation of that which he prefers to relinquish.

A subsequent correspondence arose respecting the refusal of leave, to this

effect:

"I have the honour to request that a subaltern officer may be detailed from headquarters to take over command and payment of my troop, on or about the 1st January 1878. It is the privilege of a Member of Parliament to be free from arrest or restraint, in or proceeding from the place he resides, to the place appointed for the meeting of Parliament for forty days previous to the date published in the 'London Gazette,' for the meeting of Parliament which is to assemble for the transaction of business on the 17th January 1878." This was transmitted to the Adjutant-General for consideration, with reference to the right claimed by the Officer to absent himself (should he so desire) from military duty without the grant of leave, for forty days previous to the meeting of Parliament.

Upon which I wrote thus:

"The rule of Parliament is that no member can be arrested on civil process within forty days, either before or after the meeting of Parliament, but on criminal process he may be arrested, in which latter term is included (I presume) an arrest for trial by court-martial, which may be made upon any member although the House be sitting."7

Now, from this rule the officer would educe another, viz., that he is not bound to give his personal service with his regiment for forty days before and forty days after the Session, or, in other words, that he can, if the leave be refused, go away from his regiment to any place for this period, which must not be conceded to him."

An opportunity was presented of raising the question whether an officer on full pay can exempt himself from his military duty under the plea and protection of parliamentary privilege, because, if leave had been refused to him, and he had quited his regiment, a trial for desertion would have followed, and his arrest being, in the usual course, communicated to Parliament, the officer could have brought the subject before Parliament, and got a decision on the main question1; leave was however given to him.

1 29th December 1877. Memorandum by Legal Secretary.

201

INDEX.